By Lisa MacBeth, GW Law, 3L
In March 2022, Kyle Hanagami (Hanagami) filed a suit against Epic Games in the District Court for the Central District of California for direct infringement of copyright, contributory infringement of copyright, and unfair competition.
Hanagami alleges that his dance, which was registered in 2017, is being misappropriated and that Epic Games is profiting from the unauthorized option to purchase the emote aptly named “It’s Complicated” within the game.
Hanagami is a successful choreographer in Los Angeles who creates content for tours, music videos, television, film. He’s worked with artists such as Jennifer Lopez, Justin Bieber, and NSYNC. Hanagami also publishes some choreography on to a YouTube channel with 4.55 million subscribers and over 857 million total video views, which adds to the recognizability of his choreography. The registered choreography involved was published in a November 2017 with the YouTube video title “CHARLIE PUTH – How Long I Kyle Hanagami Choreography“. The choreography was registered in February 2021, and currently has over 36 million views on YouTube.
Fortnite, owned by Epic Games, has the option to purchase emotes in the game. Fortnite can create these emotes by replicating and coding dances and movements directly from popular videos, movies, and television without consent. Since Fortnite is a free game, their $5.1 billion, as of 2020, in revenue is predominantly driven through in-game purchases, including emotes. The disputed emote costs 500 V-Bucks, Fortnite’s in-game currency, which is roughly $5 USD. This emote is available to more than 350 million registered players world-wide. [ML1]
Epic Games is no stranger to copyright infringement suits for use of other’s choreography in emotes. Epic Games has been faced with suits against rapper 2 Milly, Fresh Prince of Bel-Air star Alfonso Ribeiro, and social media personality Backpack Kid. In 2019, Epic Games was faced with similar suits, however these choreographers differed from Hanagami because they did not yet copyright their dances and therefore the suits were dismissed[ML2] . Prior to these suits, legal action could be taken as soon as a copyright application is registered, however a 2019 US Supreme Court decision concluded that suits may only be filed after the copyright application is approved, which may take multiple months. This ruling slowed down the number of suits Fortnite faced.
Other game developers are also accused of misappropriating choreography in emotes such as Take-Two Interactive Software, which faced a suit against rapper Soulja Boy for their use of “Crank That” choreography in NBA 2k19. Emotes ae causing problems for game developers across the world, and in the future, developers may need to go to choreographers first to seek licensing deals.
Hanagami’s attorney created a side-by-side comparison of the two dances to highlight the similarities. The complaint emphasizes that Hanagami was never asked for permission to use his choreography in the game, nor has he received compensation from the profit of the emote. The complaint explains that Epic Games frequently reaches out to young artists from platforms like TikTok for permission to use choreography at a cheap price point. However, they chose to bypass that process with Hanagami, possibly due to the expected cost of licensing the choreography.
Choreography can be difficult to copyright because there is little precedent according to a report by Dance Magazine. Generally speaking, a dance work that violates a copyright must be found to copy most of the original work, rather than just a few moves or one section of it. Simple routines such as end zone dances, series of yoga positions, and social dances intended to be disseminated by others are considered to be unprotected by copyright[ML3] . The dance must be able to be performed in a “consistent and uniform manner” and documented in some fashion. [ML4] Choreography is more likely to be protected if it is performed by a skilled dancer, if it involves a story or theme, or if it is performed for the entertainment of others, compared to for others to mimic.
Hanagami is likely to have more success with his suit compared to past copyright suits against Epic Games due to his copyright, however Hanagami still has challenges he must overcome. Although the “It’s Complicated” emote has an uncanny resemblance to Hanagami’s choreography, the emote only showcases a few seconds of the choreography. An individual dance move that makes up an overall body of work is not protected. [ML5] Since Fortnite only uses a portion of the dance, they may not be found liable for copyright infringement.
Hanagami is seeking injunctive relief and damages including the profits derived from the improper use of his registered choreography.
[ML1]https://www.businessofapps.com/data/fortnite-statistics/
[ML2]https://www.tubefilter.com/2022/03/30/kyle-hanagami-fortnite-copyright-dance-moves-emote-lawsuit/#:~:text=Back%20in%202019%2C%20five%20lawsuits,the%20copyright%20to%20their%20routines.
[ML3]https://www.legalzoom.com/articles/how-to-copyright-a-dance#:~:text=Choreographic%20works%20are%20afforded%20the,Reproduces%20the%20work
[ML4]https://www.copyright.gov/circs/circ52.pdf
[ML5]https://www.lexology.com/library/detail.aspx?g=32bcca55-88e7-4b47-92de-52e8bfc5762e#:~:text=Since%20then%2C%20although%20the%20US,’the%20Floss’%20as%20choreography.
