The intersection of digital creations, business behaviours, and artistic expression is becoming more important in this era of increasing digitalisation and virtual experiences. As was evidenced by a November 1 court ruling regarding legal protection for choreographic works, copyright law is currently experiencing significant shifts. These shifts and expansions of legal definitions can have profound implications for businesses which may not be aware they’re infringing on protected works.
Epic Games Inc., creator of the popular Fortnite video game, found themselves in the midst of a copyright dispute due to one of their character animations, or emotes. Celebrity choreographer Kyle Hanagami sued the company, claiming that a two-second sequence of dance moves in an emote called “It’s Complicated” infringed on one of his registered choreographies. This lawsuit wasn’t initially successful, due to a narrow interpretation of copyright protection for dance routines, but was recently revived by the US Court of Appeals for the Ninth Circuit.
This case should serve as both a lesson and warning for businesses. Today, many companies use various types of media content for promotion or internal training purposes. However, the line between fair use and infringement can blur easily as more creators seek copyright protection for their artistic works originating as social content. Hence, it’s not just for companies like Epic Games this court ruling is significant. Any business leveraging creative content as a part of their strategy could face potential legal issues.
Choreographer Kyle Hanagami’s claim is not baseless, as he owns a valid copyright registration for a dance routine set to the song “How Long” by Charlie Puth that he posted on his YouTube channel in 2017. He believes that the “It’s Complicated” emote, uses the most recognisable portion of his routine. The US Court of Appeals for the Ninth Circuit agreed that all elements of a choreography, including movements, tempo, transitions, and overall composition, need to be considered when assessing substantial similarity, thus rejecting the lower court’s view of considering individual poses in isolation.
This ruling highlights the complexity and creativity inherent in choreographic works, irrespective of their duration or the proportion they occupy in a larger choreography. Thus, it extends the copyright protection scope for choreographers, protecting significant, qualitatively impactful, and original portions of a work, in addition to complete works.
In light of this ruling, businesses should exercise caution when using excerpts from creative works, including dance moves and other artistic elements in their products. They should ensure that any extracted choreographical segments used are either original, licensed, or outside the scope of copyright protection. They should also be wary while using clips from movies, music videos, YouTube, and social media reels, as the boundaries of copyright law continue to expand.
Ultimately, this case and the court’s ruling underscores the importance of adopting robust intellectual property strategies in the face of emerging legal challenges. For those interested in learning more about the case, it is referred to as Kyle Hanagami v. Epic Games Inc., 9th Cir., No. 22-55890.