Proprietary Poetry: Fortnite Dance Moves Aren’t Copyright Infringing | AEON Law


Fortnite dance moves don’t
infringe choreographer

A federal district court in California has dismissed a choreographer’s claims against Epic Games Inc. based on dance moves in Epic’s. Fortnite videogame.

Plaintiff Kyle Hanagami is a professional choreographer and dance instructor in Los Angeles. In 2017, he posted a five-minute YouTube video of him and others dancing to Charlie Puth’s song “How Long” using his choreography.

Hanagami registered her video with the US Copyright Office in 2021 as a work of choreography.

As the Copyright Office notes,

The Copyright Act provides in section 102(a)(4) for copyright protection in “pantomimes and choreographic works” created after January 1, 1978 and fixed in some tangible medium of expression.1 Choreography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole. Pantomime is the art of imitating, presenting or representing situations, characters or events through the use of physical gestures and body movements. Choreography and pantomime consisting of ordinary motor activities, social dances, common movements or gestures, or athletic movements may lack a sufficient amount of authorship to qualify for copyright protection.

Furthermore, says the Copyright Office,

Common elements of the choreography include

• Rhythmic movements of one or more bodies of dancers in a defined sequence and a defined spatial environment, such as a stage

• A series of dance movements or patterns organized into an integrated, coherent and expressive compositional whole

• A story, theme, or abstract composition conveyed through movement

• A presentation before an audience

• A performance of trained people

• Musical or textual accompaniment

As the court order notes, Epic Games develops and distributes video games, including Fortnite, a free-to-play multiplayer shooter.

Fortnite offers an in-game market, called the “Item Shop”, where players can purchase virtual currency to purchase virtual customizations for their in-game characters.

These customizations include clothing, weapons, and emotes. An emoticon is an animated movement or dance.

The gesture in question in the case is the “It’s Complicated” dance. The plaintiff argued that it contained the most recognizable elements of his copyrighted work of choreography.

The plaintiff’s attorney provided a video showing the dance moves side by side. The judge agreed that ten of the poses in the video and the emoticon are the same.

However, the judge concluded that the Claimant’s dance steps are individual poses that, taken together, constitute mere “building blocks for a choreographer’s expression” and therefore cannot be protected on their own.

According to the court,

Choreographic works draw on a myriad of creative elements, including rhythmic movement in a defined space, compositional arrangement, musical or textual accompaniment, dramatic content, presentation before an audience, and expert execution.

Here, the court found, the two works are not substantially similar, because other than four identical counts of poses, which stand alone, the works do not share any creative elements.

The court continued:

The two works contain a number of different poses performed in different settings and by different types of performers: the plaintiff’s dance is performed by humans in the physical world, and the defendant’s Emote is performed by animated characters in a virtual world. The works are performed for different audiences, as the Claimant’s video was made in the Claimant’s dance studio and posted for a YouTube audience. The Accused Emote is performed by Fortnite players in the game for an audience in the game. Beyond the Steps, Claimant does not identify other similar creative elements in Claimant’s and Respondent’s choreographic works.

What The player informed,

Epic Games has previously come under fire for allegedly copying 2Milly’s Milly Rock dance move with the Swipe It emote, with Alfonso Ribeiro saying Epic stole Carlton’s dance from The Fresh Prince of Bel-Air.

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