A recent federal appeals court ruling said Fortnite’s developers can be sued by a dancer who claims they ripped off his original choreography for use in the video game.
And that decision is raising questions about the impact on other creators in the gaming industry - including the potential for still more lawsuits against other game makers.
The Ninth Circuit ruling in Kyle Hanagami v. Epic Games Inc. is significant for several reasons, especially for game developers and others working with digital representations of creative works like dance and choreography, said David B. Hoppe, managing partner with Gamma Law, in San Francisco, in an email response to questions from the Southern California Record:
• Clarification on Choreography Copyright: “This ruling underscores that choreography is a protectable form of expression under copyright law and is about the selection, arrangement, and coordination of individual poses,” Hoppe said. “This clarification is crucial in the digital age, where the replication of dance moves is common in video games, movies, and other media.”
• Increased Scrutiny for Game Developers: “Game developers who incorporate dance moves or choreography into their games, especially in a way that closely mimics existing copyrighted works, may now face a higher risk of copyright infringement claims,” Hoppe said. “This ruling sends a clear message that the mere simplification of a dance into basic moves does not necessarily avoid copyright infringement.”
• Substantial Similarity Test: “The application of the extrinsic test to assess objective similarities in choreography highlights the importance of analyzing both the qualitative and quantitative aspects of the copied work,” Hoppe said. “Game developers need to be mindful of how closely their animations or emotes resemble the expressive elements of copyrighted choreography.”
• Potential for More Litigation: “This decision may encourage more choreographers and dancers to pursue legal action if they believe their works have been used without permission in video games or other digital media,” he said.
• Need for Clear Licensing Agreements: “Game developers and other creators in digital media may now be more inclined to seek explicit permissions or licensing agreements when using dance moves or choreographic works that could be copyrighted,” he said.
• Impact Beyond Gaming: While this case focuses on a video game, Hoppe added that the implications extend to any digital or virtual representation of choreographic work, including in movies, virtual reality environments and online platforms.
Hoppe noted that in light of the Ninth Circuit's ruling in Hanagami v. Epic, game developers and other content creators should take several key steps to mitigate legal risks, especially when incorporating elements like dance moves or choreography into their content:
• Seek Permissions and Licenses: “If a dance or choreographic work is copyrighted, obtain permission from the copyright holder,” Hoppe said. “This often involves negotiating licensing agreements, which should be handled by legal professionals to ensure compliance with copyright law.”
• Consider Fair Use, but Be Cautious: “While the doctrine of fair use might apply in some cases, relying on it can be legally risky, especially in commercial contexts like video games,” Hoppe said. “Fair use is determined on a case-by-case basis and should not be assumed as a default protection.”
• Create Original Content: “One of the safest routes is to create original choreography or collaborate with choreographers to create unique dances,” Hoppe said. “This not only avoids legal issues but can also add originality and distinctiveness to the game or content.”
• Stay Informed About Legal Developments: “The legal landscape, particularly concerning digital media and copyright, is continually evolving,” Hoppe said. “Regularly update your knowledge and stay informed about recent court rulings and legal interpretations that could impact your content.”
• Implement Internal Policies: Develop internal policies for your team on how to handle copyrighted materials, including training on copyright law and the importance of securing proper permissions, he said.
• Prepare for Potential Litigation: Even with precautions, there is always a risk of litigation, Hoppe said. “Be prepared with a legal strategy and understand the potential costs and implications of copyright disputes.”
• Engage in Industry Discussions: “Participate in industry-wide discussions and initiatives to address these challenges,” Hoppe said. “Collective efforts can lead to more standardized practices and potentially influence future legal frameworks.”
Hoppe noted that the Hanagami ruling was preceded by other cases filed against Epic on the same basis – that dance moves in the game infringed copyrighted choreographed routines:
1. Alfonso Ribeiro vs. Epic Games: Alfonso Ribeiro, known for his role as Carlton in "The Fresh Prince of Bel-Air," sued Epic Games for using his "Carlton dance" in Fortnite. The dance became widely recognized through the TV show.
2. Russell Horning (Backpack Kid) vs. Epic Games: Russell Horning, known as the "Backpack Kid," gained fame for his dance, "the Floss." He filed a lawsuit against Epic Games for incorporating the Floss dance into Fortnite.
3. 2 Milly vs. Epic Games: Rapper 2 Milly sued Epic Games over the inclusion of his dance, the "Milly Rock," in Fortnite, which was renamed in the game as "Swipe It."
“In those cases, the plaintiffs argued that Epic Games used their dance moves without permission or compensation,” Hoppe said. “However, these lawsuits faced significant challenges, particularly regarding the timing and status of copyright registrations.”
Hoppe noted that each of those cases was dropped on procedural grounds following the 2019 US Supreme Court decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC:
Decision Summary: The Supreme Court held that under the Copyright Act, a copyright holder cannot file an infringement lawsuit until the U.S. Copyright Office has completed the registration process for the copyright in question, Hoppe said.
Impact on Dance Copyright Cases: The Ribeiro, Horning, and 2 Milly lawsuits faced challenges because the copyrights for the dances were not registered at the time the lawsuits were filed, he said.
The novelty in the Hanagami case lies in its detailed examination of choreography as a form of copyrightable material, especially within the realm of video games, Hoppe said.
“The ruling acknowledges the complexity of choreographic works and their potential copyrightability, even when used in a digital format like a video game emote," Hoppe said. "This aspect of the case is particularly significant as it broadens the understanding of how copyright law can be applied to modern digital content, setting a precedent for future cases involving similar issues.”
In the context of the Ninth Circuit's Hanagami ruling, and the broader issue of using dance moves or choreography in video games and digital content, Hoppe said the most important points for people, particularly content creators and developers, to understand are:
• Choreography is Copyrightable: Dance sequences and choreographic works can be protected under copyright law, Hoppe said. “This means they are subject to the same legal protections as other forms of intellectual property, like music or artwork.”
• Permission and Licensing are Key: Before using a dance move or choreographic work, it’s essential to obtain permission from the copyright holder, Hoppe said. “This often involves licensing agreements, which must be carefully negotiated and drafted.”
• Legal Risks in Unauthorized Use: Using choreography without permission exposes creators to significant legal risks, including copyright infringement lawsuits, Hoppe said. “These can result in costly settlements or damage awards, legal fees, and negative publicity.”
• The Evolving Nature of Copyright Law: The legal landscape around the copyrightability of dance moves, especially in digital media, is evolving, Hoppe said. “Staying informed about legal developments is crucial for anyone involved in content creation.”
• Balance Creativity with Legal Compliance: While it's important to be creative and innovative, this should be balanced with a respect for the legal rights of choreographers and dancers, Hoppe said. “Creating original content or collaborating directly with artists can be a beneficial approach.”