A celebrity choreographer who accused Epic Games Inc. of using his dance moves without consent in its popular online video game Fortnite urged the Ninth Circuit to revive his case and establish a proper framework to weigh copyright protections for choreography.
A California federal court relied on a “superficial analysis” to dismiss his copyright infringement lawsuit, Kyle Hanagami said in an opening brief Monday to the US Court of Appeals for the Ninth Circuit.
Hanagami, who has choreographed for performers including Jennifer Lopez, Justin Bieber, Britney Spears, and BTS, alleged in a March 2022 complaint that Epic Games copied the heart of one of his most well known works— choreography to Charlie Puth’s “How Long” — to create the “It’s Complicated” emote, a movement for Fortnite characters.
His case is one of several lawsuits filed by a dance’s originator over Fortnite allegedly using their moves without permission. Musician 2 Milly sued over the game’s use of the Milly Rock, as did actor Alfonso Riberio over use of his “Fresh Prince of Bel Air” character’s signature move, the Carlton. Both ultimately dropped their lawsuits because they had been denied copyright registration.
Hanagami copyrighted his dance through the US Copyright Office. The district court found, though, that guidance from the office indicated the sequence of dance steps that he alleged were used in the “emote” are not protectable when viewed outside the context of the whole dance routine.
Hanagami’s brief said the district court’s decision looked only at static positions and ignored most of the artistic and expressive elements in question, reducing “the choreographic work to an unrecognizable shell.”
He further argued that the consequences of the district court’s decision are far reaching and imply that choreographic works are only offered legal protection when an artist can prove that virtually an entire work was copied. “Taken to its logical conclusion, this would entitle choreographic works to only a thin layer of protection from potential infringers,” it said.
“The consequences of the district court’s flawed holding are far-reaching; it has effectively destroyed artists’ ability to adequately protect choreography in the age of short-form media, like YouTube Shorts, Instagram/Facebook Reels, and TikTok,” said Hanagami’s attorney David Hecht in a statement to Bloomberg Law. “Epic must be made to recognize, and pay, creators like Kyle Hanagami in connection with their choreographic work.”
Epic Games didn’t immediately respond to a request for comment.
Kirkland & Ellis LLP represents Epic Games. Hecht Partners LLP represents Hanagami.
The case is Kyle Hanagami v. Epic Games, Inc., et al, 9th Cir., No. 22-55890, opening brief filed 1/30/23.
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