In yet another twist, the already complex legal combat between professional choreographers and the makers of Fortnite, Epic Games, has been revived. The battle revolves around who holds the rights to the dance moves or 'emotes' depicted in the ultra-popular game, a question that has led to an intricate intertwining of law, technology, and entertainment.
This incrusted legal battle was reignited this week by a panel of US appeals court judges from the 9th Circuit. They breathed new life into a lawsuit, originally dismissed last year, instigated by professional choreographer, Kyle Hanagami. Hanagami is challenging Epic Games over the use of his choreographed dance moves in their game.
Understanding the Ninth Circuit's Verdict
Drawing attention to the verdict's details, Billboard highlighted the opinion filed on November 1 (PDF). The presiding Ninth Circuit Court of Appeals Judge, Richard Paez, interestingly noted that even though there isn't any protection for individual elements of a dance move, the overall arrangement qualifies for protection under copyright law.
For those not familiar with copyright law, this decision by Judge Paez highlights a critical aspect of the legal application of copyright to creative works. Individual elements—be they the steps of a dance, notes of a song, or even aspects of a piece of software—cannot be copyrighted, but the way they are put together to constitute a choreography, a music piece, or a software application can indeed be copyright-protected.
The Epic Emote Debate Recurrence
The 'emote' feature in Fortnite allows players to trigger animations that mimic popular dance moves. This feature has been the source of several legal battles since it potentially infringes the copyright of choreographers who created these iconic moves. In the initial case, the lower court held that while the choreography's steps and posing were not sequentially the same, only four identical counts of poses were remotely similar. They stated that these shared no “creative elements” with Hanagami's work.
Agreeing with the lower court's view that individual elements are not protectable, the 9th Circuit panel emphasized that referring to parts of choreography as ‘poses' is akin to labelling music merely as ‘notes.' It stated that other aspects such as rhythm, spatial usage, and even the vigor of the dance performance could also be considered. Elements such as body positioning, movement transitions, use of space, pauses, and energy could be components of a choreographed work.
They concluded that Hanagami had sufficiently alleged that Epic had duplicated several creative aspects of his dance moves. These include limb, hand and finger movements, head and shoulder motion, and tempo. In response to The Verge reaching out, Hanagami's lead attorney, David Hect, mentioned that his client was energized by the court's verdict and ready to pursue the claims against Epic Games. He declared this event as significantly impactful for the rights of choreographers in the tech-driven world of short-form digital media.
Previously, Fortnite has been victorious in similar cases. However, one false endorsement claim won an extension. A couple of cases were put on hold in 2019, including one brought forward by The Fresh Prince of Bel-Air star Alfonso Ribeiro. Now, the case restores its journey back to the district court. The appeals court judges stated the court would be able to better evaluate the claim for copyright protection of Hanagami with a more complete record. Epic Games has yet to comment on the development.