In 2022, Choreographer Kyle Hanagami (“Hanagami”) brought suit against video game developer and publisher Epic Games, Inc. (“Epic”), claiming that a virtual animation – known as an “emote” – that Epic sold as downloadable content for its game Fortnite infringed Hanagami’s registered copyright in one of his choreographic works. In August 2022, the United States District Court for the Central District of California dismissed the lawsuit on the grounds that any similarities did not relate to copyrightable expression. On November 1, 2023, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded the action for further consideration. Hanagami v. Epic Games, Inc., No. 22-55890, (9th Cir., Nov. 1, 2023).
Kyle Hanagami is an acclaimed choreographer who has worked with celebrities like Jennifer Lopez, Britney Spears, and Justin Bieber. In 2017, he published a video (the “How Long Video”), containing a five-minute dance. He later registered his work with the copyright office.
The litigation related to Epic’s videogame, Fortnite, whereplayers could purchase the emote using real money to give their in-game avatar the ability to perform the dance. Hanagami argued that his copyrighted dance steps “were identical to Epic’s emote and comprised the most recognized portion of his work.”
The district court granted Epic’s motion to dismiss Hanagami’s claims under Federal Rule of Civ. Pro. 12(b)(6), ruling that, “Hanagami failed to plausibly allege that Epic’s emote was substantially similar to his registered choreography.” The court first found that the choreography is composed of “a number of individual poses” that are not protectable “when viewed in isolation.” The court also determined that the overall “steps” Epic allegedly copied—a “two-second combination of eight bodily movements, set to four beats of music”—were not protectable under the Copyright Act because they were only a “small component” of Hanagami’s copyrighted work. The Ninth Circuit reversed.
