Ninth Circuit Revives Copyright Claims Over Avatar Emote in Fortnite


Kyle Hanagami, a celebrity choreographer, registered a copyright in a five-minute choreographic work depicted in a video posted to YouTube performed to the song “How Long” by singer Charlie Puth. The dance includes approximately 480 counts of choreography consisting of 96 counts.

In August 2020, Epic released a new emote for avatars in its Fortnite game called “It’s Complicated” that contained 16 counts of movement. Hanagami alleged that the “It’s Complicated” emote copied four counts of movement from his choreography in the “How Long” video. Hanagami’s counsel prepared a side-by-side video of the alleged copying. See David Hecht, Fortnite Infringement of Kyle Hanagami Choreography, YouTube (Mar. 28, 2022), [].

Based on that alleged copying, Hanagami sued Epic for direct and contributory copyright infringement.

The district court granted Epic’s motion to dismiss concluding in part that the four counts of movement allegedly copied were only a “small component” of Hanagami’s copyrighted work. And because the court concluded that the individual dance steps were not protectable on their own, copyright protection extended only for the steps as expressed in the entirety of Hanagami’s five-minute work. As a result, the court found the similarities between Hanagami’s five-minute work and Epic’s four-count emote insufficient to state a claim for copyright infringement.

After providing a history of copyright protection for choreographic works, the Ninth Circuit reversed the district court, finding that the court had erred in the application of the substantial similarity test for copyright infringement claims.

Among other errors, the Ninth Circuit found that the district court improperly focused on the unprotectable “poses” in Hanagami’s work and incorrectly concluded that the four-count segment was an unprotectable component of Hanagami’s work as a whole. The Ninth Circuit also reiterated that it is relatively rare that copyright claims should be dismissed for lack of substantial similarity at the pleading stage.

Finally, the Ninth Circuit left for the district court the question whether Hanagami’s choreographic work, and choreographic works in general, are entitled to “thin” or “broad” copyright protection.

Hanagami v. Epic Games, Inc., No. 22-55890 (9th Cir. Nov. 1, 2023).

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