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A prominent choreographer\u2019s lawsuit against Fortnite maker Epic Games<\/a> is back on after the 9th Circuit U.S. Court of Appeals overturned a lower court\u2019s decision<\/a> to throw the case out last year.<\/p>\n Kyle Hanagami sued Epic last year, accusing the company of stealing his choreography for one of Fortnite\u2019s in-game emote. Hanagami has crafted hit dance routines for Jennifer Lopez, Britney Spears, Justin Bieber and an array of K-Pop stars, among other major names in music.<\/p>\n The emote, called \u201cIt\u2019s Complicated,\u201d showed up in Fortnite Chapter 2 Season 3 in August 2020. Players could purchase the notably complex series of dance moves for their own digital avatars to use in Fortnite matches (players often deploy emotes to celebrate wins or troll opponents).<\/p>\n In his lawsuit, Hanagami accused Epic of lifting the sequence of moves from his own original YouTube video, set to the song \u201cHow Long\u201d by Charlie Puth. That video had 37 million views as of November 2023.<\/p>\n Epic makes money from the virtual items and dance moves it sells in the Fortnite store, which range in price from a few dollars on up depending on the item\u2019s rarity. All of these transactions happen using V-Bucks, Fortnite\u2019s in-game currency. In 2020, Epic charged 500 V-Bucks, valued at $5 USD, for the dance emote at the heart of the case. TechCrunch has reached out to Epic for comment on the case.<\/p>\n \u201cYou know we\u2019re buying it \u2014 oh my god. Man, the movements, the beat, and everything is amazing with that emote,\u201d one Fortnite YouTuber exclaimed<\/a> during a review of the in-game store\u2019s stock the week the dance was introduced.<\/p>\n When a district court dismissed the case last year, it argued that the individual poses within a stretch of choreography are not protected by copyright. According to a court filing, the lower court \u201cdetermined that the overall \u2018steps\u2019 Epic allegedly copied\u2014which the court described as \u2018a two second combination of eight bodily movements, set to four beats of music\u2019\u2014were not protectable under the Copyright Act because they were only a \u2018small component\u2019 of Hanagami\u2019s work.\u201d<\/p>\n The district court found that the segment of the choreography in question was closer to \u201cuncopyrightable dance\u201d than choreography eligible for copyright protections. While the entire five minute long sequence would be protected, it ruled that the portion of the moves in question was not. The Ninth Circuit disagreed, writing that the lower court \u201cerred in dismissing Hanagami\u2019s claim because the choreography was \u201cshort\u201d and a \u201csmall component\u201d of Hanagami\u2019s overall work.\u201d<\/p>\n Hanagami applied to copyright the choreography from the video in February 2021 and the application was granted that same month.<\/p>\n \u201cHanagami argues the district court erred in its application of the extrinsic test when it determined that the Registered Choreography and the \u2018It\u2019s Complicated\u2019 emote were not substantially similar,\u201d the appeals court wrote. \u201cWe agree with Hanagami. The district court\u2019s approach of reducing choreography to \u2018poses\u2019 is fundamentally at odds with the way we analyze copyright claims for other art forms, like musical compositions. We reverse and remand to the district court on this basis\u201d<\/p>\n Epic rotates the items available through Fortnite\u2019s store daily, and the \u201cIt\u2019s Complicated\u201d emote was available in the store every few months from August 2020 to August 2021.<\/p>\n The appeals court cited Hanagami\u2019s argument that similarities between his choreography and the Fortnite emote were not obvious when breaking the dance moves into \u201cstatic poses,\u201d as the lower court did during its decision making.<\/p>\n \u201cHe alleged that Epic copied \u2018without limitation, the footwork, movement of the limbs, movement of the hands and fingers, and head and shoulder movement covered by the Registered Choreography,’\u201d the appeals court wrote. \u201cThe district court erred by ignoring these elements in its application of the substantial similarity test.\u201d<\/p>\n While the appeals court was sympathetic to Hanagami, the case is not yet settled and will head back to court, where it could ultimately be decided by a jury.<\/p>\n Hanagami isn\u2019t the first to accuse Epic of stealing creative works for its lucrative in-game Fortnite store. In 2018, actor Alfonso Ribeiro, who played Carlton on the TV hit \u201cFresh Prince of Bel Air\u201d and the family of Russell Horning, known online as \u201cBackpack Kid,\u201d filed their own lawsuits<\/a> over the game\u2019s digital dances. So did rapper 2 Milly, who alleged<\/a> that Epic stole his viral dance move the Milly Rock, selling it for V-Bucks as \u201cSwipe it.\u201d<\/p>\n All of those suits, which were filed as plaintiffs applied to copyright their dances, were dropped in 2019 following a Supreme Court ruling stating that copyright holders can\u2019t sue until the U.S. Copyright Office has taken action on an application for copyright.<\/p>\n \u00a0<\/p>\n<\/p><\/div>\n