Epic Defeats Copyright Claim Over Dance Emote

Big Picture

On August 24, 2022, the court in Kyle Hanagami v. Epic Games (2:22-cv-02063-SVW-MRW) granted Epic’s motion to dismiss the plaintiff’s claims for copyright infringement and unfair competition. This ruling further solidifies the notion that copyright law does not protect social dances or simple dance routines.

the setup

On November 11, 2017, Kyle Hanagami, a professional choreographer and dance instructor in Los Angeles published a YouTube video of himself and others dancing to the song “How Long” by Charlie Puth. The five-minute long video includes five different groups of dancers performing the same choreography.

On February 20, 2021, Mr. Hanagami registered the video as a choreographic work with the US Copyright Office.

Epic Games created a Fortnite emote called “It’s Complicated” that allegedly contains “the most recognizable portion” of Mr. Hanagami’s choreography, i.e., “the portion for the hook at the beginning of the chorus of the song.” The court compared side-by-side still images of the dances and concluded that ten of the poses in the video and the emote are the same:

Order on Motion to Dismiss

Epic brought a motion to dismiss the complaint and the court applied the Ninth Circuit’s test for substantial similarity which contains both an “extrinsic” and an “intrinsic” component. The extrinsic component — which courts examine as a matter of law — compares specific criteria which can be listed and analyzed to determine whether the works are substantially similar. The intrinsic component — which is often decided by a jury — examines an ordinary person’s subjective impressions of the similarities between the two works.

On the extrinsic component, courts first attempt to “filter out” the unprotectable elements of the plaintiff’s work such as ideas, concepts, public domain material, and scène à faire (stock or standard features commonly associated with the treatment of a given subject).

Here, the court began by defining choreography as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” and refers to the guidance from the U.S. Copyright Office recognizing the continuum between copyrightable choreography and uncopyrightable dance. Although the court finds that “[t]o a degree, Plaintiff’s Steps here involve more creativity than the basic waltz step, the hustle step, and the second position of classical ballet” it nevertheless finds them similar to “the Floss, the Carlton, or other examples in the Copyright Compendium” of unprotectable dance steps. As a result, the court concluded that Mr. Hanagami was only entitled to protection for the way the dance steps were expressed in his registered choreography.

With that in mind, the court found that Epic’s emote was not substantially similar because “other than…four identical counts of poses—which are unprotected alone—Plaintiff and Defendant’s works do not share any creative elements.” The court listed a number of differences in the two works and how the dance steps are performed:

Plaintiff’s dance is performed by humans in the physical world, and Defendant’s Emote by animated characters in a virtual world. The works are performed for different audiences, as Plaintiff’s video was performed at Plaintiff’s dance studio and published for a YouTube audience. Defendant’s Emote is performed by Fortnite players in-game for an in-game audience. Beyond the Steps, Plaintiff identifies no other similar creative elements in Plaintiff and Defendant’s choreographic works.

As a result, the court dismissed the copyright claim. It also dismissed an unfair competition claim as preempted (which is entirely unexciting and completely expected).

Thoughts

While some people may feel that this case was further on the “continuum” towards choreography than the “Floss” or “Carlton,” it still seems logically consistent with the earlier decisions. It also further establishes a bright line of what is permissible copying of dance steps for things like dance emotes in games. Now, if only the remaining tattoo cases (e.g., Hayden, Alexandria, etc.) can fall in line with Solid Oak Sketches decision….