IP Law Daily, COPYRIGHT—C.D. Cal.: Well-known “How Long” dance steps not protected from use in Epic Games’ Fortnite, (Aug 30, 2022)

By Anne Gibson, J.D., LL.M.

The eight steps, part of a longer, copyrighted choreography, are more akin to a “simple routine,” and so are not protected despite their “originality and creativity.”

Despite being a portion of a longer choreography that is registered with the Copyright Office, a shorter selection of dance steps created by Kyle Hanagami for the well-known song “How Long” are not protected by copyright law, the District Court for the Central District of California has held. Popular video game maker Epic Games, Inc., could not have infringed on Hanagami’s copyright, because the eight dance steps, sold for use with avatars in the game Fortnite Battle Royale, fall into a category of “social dance steps or simple routines.” Epic Games’ motion to dismiss was consequently granted (Hanagami v. Epic Games, Inc., August 24, 2022, Wilson, S.).

Hanagami, according to his complaint filed in March 2022, is “one of the industry’s most sought-after talents across nearly every medium” and his work has been utilized by well-known artists, including Jennifer Lopez, Britney Spears, Justin Beiber, and NSYNC. Central to the present case, Hanagami is the author and copyright claimant of a dance choreography for the song “How Long.” The choreography, a series of dance moves that accompany the hit song by Charlie Puth, was completed in 2017 and first published by the choreographer on his YouTube channel. The choreography in the video, which to date has received nearly 36 million views, is registered with the Copyright Office.

Hanagami asserted that Epic Games misappropriated the “How Long” dance in its video game, Fortnite Battle Royale. Fortnite is free to play but offers its players the ability to purchase customizations for their avatars. The customizations include new clothes, weapons, and “emotes,” which are essentially movements or dances that the in-game characters perform. Hanagami alleged that one of these emotes, a dance move titled “It’s Complicated” within the game, contains an immediately recognizable portion of the “How Long” dance routine, specifically the portion at the beginning of the chorus of the song, which repeats several times. Hanagami was not approached for a license to the eight steps of the dance used by Epic Games. He brought claims of direct infringement, contributory infringement, and unfair competition. Epic Games filed a motion to dismiss.

Copyright infringement. There was no question that the eight steps at issue were identical in the original video and in the “It’s Complicated” emote. In determining whether Hanagami had stated an adequate claim for copyright infringement, however, the court looked at the two elements of the claim: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Citing Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018), the court further elaborated that the second element has two parts, “copying” and “unlawful appropriation.” It found that Hanagami had stated sufficient facts to allege ownership of a valid copyright and copying. It then turned to the issue of “unlawful appropriation.”

To do so, the court looked to whether the two works were “substantially similar,” requiring a determination of whether any “extrinsic components” of the eight steps were “unprotectable” and so should be “filtered out” of the analysis.

Guidance from the Copyright Office was instrumental in the court’s determination that the eight steps were not protected. The Copyright Office recognizes “a continuum between copyrightable choreography and uncopyrightable dance.” “Social dances and simple routines,” such as the waltz, the hustle, or ballet positions, cannot be copyrighted, although a longer work of choreography incorporating them could be. For example, the Copyright Office previously refused to register such well-known and widely popular dances as the “Carlton” or the “Floss,” despite registering a longer dance that incorporated it.

The court in this case found that Hanagami’s eight steps were comparable. Despite their “originality and creativity,” the short segment of movements fell within the Copyright Office’s category of “social dances, simple routines, and other uncopyrightable movements [that] cannot be registered as separate and distinct works of authorship, even if they contain a substantial amount of creative expression.” Only the moves within the context of the entire “How Long” choreography were protected. Because the steps themselves are not protected and so had to be “filtered out” of the analysis, the court found that Hanagami’s choreography and the Epic Games emotes were not substantially similar, and it dismissed the copyright claim.

Unfair Competition. Turning to Hanagami’s Unfair Competition claims, the court found that these were “based exclusively on the misappropriation of the original work, which is ‘part and parcel of the copyright claim.’” It rejected the argument that the alleged “false endorsement” from Epic Game’s use of the steps differentiated this claim from the copyright infringement claims. Consequently, these claims were preempted by the Copyright Act. Epic Games’ motion to dismiss was granted.

The Case is No. 2:22-cv-02063-SVW-MRW.

Attorneys: Kathryn Lee Boyd (Hecht Partners LLP) for Kyle Hanagami. Dale M. Cendali (Kirkland and Ellis LLP) for Epic Games, Inc.

Companies: Epic Games, Inc.

Cases: Copyright CaliforniaNews