Epic Games, developer of the popular battle royale video game Fortnite, has faced a series of copyright infringement claims in the US concerning in-game dance moves, or “emotes”, in which animated characters imitate or evoke popular dance moves. Most recently, the company was successful in dismissing a suit by celebrity choreographer Kyle Hanagami, who claimed that the game makers had copied his dance routine to create the in-game “It’s complicated” emote – but would such choreography receive stronger protection under UK law? The answer: it’s complicated.
The US claims
The recent suit in the US District Court for the Central District of California concerned a five-minute video of choreography published on YouTube by professional choreographer and dance instructor Kyle Hanagami. Hanagami claimed that a recognisable two-second portion of his dance, repeated 10 times throughout the whole routine, was copied by Epic Games in the form of the “it’s complicated” emote. Under US copyright law, only original elements of a dance are protected. The US Copyright Office guidance recognises that a continuum exists between simple basic dance steps, which lack originality and are not protected, and a protectable longer composition of a related series of dance movements organised into a coherent work. As discussed on this blog, the creators of the “Floss” and “Carlton dance” moves have unsuccessfully attempted to register their iconic dance moves with the US Copyright Office, with registration rejected on the basis they only constituted individual dance steps.
In this case, the US Court accepted that the overall 5-minute dance by Hanagami was protected as a longer work of choreography. The Court then went on to undertake an analysis to determine:
- if original elements of the dance were copied by examining whether the two-second section of copied dance steps were protectable in isolation from the longer work, and
- secondly, whether the choreography as a whole and the Fortnite emote were “substantially similar”.
The Court concluded that the short sequence of poses reproduced in the Fortnite game were not protectable in isolation, and that the Fortnite emote was not substantially similar to Hanagami’s 5-minute routine as they did not share any creative elements. The Court noted that the dances were performed in different settings by different types of performers for different audiences, and that beyond the dance steps there were no similar creative elements in the works.
Protection of choreography in the UK
In the UK, original choreography is protected within the category of dramatic works in the Copyright, Designs & Patents Act 1988, which includes protection for “a work of dance or mime”. There has however been little case law on the scope of protection for dance, with some guidance from the case of Norowzian v Arks Ltd (No.2) clarifying that a dramatic work “is a work of action, with or without words or music, which is capable of being performed before an audience”. In addition to being a work of action capable of performance, choreography would need to be original, in the sense that it is the choreographer’s own intellectual creation and constitute an expression of their free and creative choices. UK law does not extend copyright protection to the building blocks of creative expression, such as individual words or simple and commonplace sequences of musical notes, and protection would not be available for an individual dance pose or single movement. Given analogous case law on the potential scope of protection available for short newspaper headings or titles, it is likely that even a short sequence of choreography can be protected in the UK so long as it demonstrates free and creative choices made by its creator.
If a UK court was considering the dispute between Hanagami and Epic, it would almost certainly accept that the overall five-minute choreographic routine was protected under UK copyright law as a dramatic work, rather than focusing on whether the shorter 2-second section was protectable in isolation. In assessing infringement, the court would traditionally consider whether a substantial part of the original work had been copied, taking a qualitative and quantitative approach. Post Infopaq International v Danske Dagblades Forening (C-5/08) it is likely that the court would focus on whether an alleged infringer had reproduced a part of the larger work which reflected the intellectual creation of the choreographer, although post Brexit it is of course open to the court to decline to apply the Infopaq approach. In reality, whichever approach is taken, where what was reproduced was the essence or main theme of the original choreography it is more likely that the court would find that there had been an infringement.
In practice, if the Infopaq approach is followed this may mean that the reproduction of short sequences of choreography in the UK has the potential to infringe, where a part including the free and creative choices of the choreographer is copied. In the UK there will be a greater focus on whether original elements of the first work have been copied in contrast to the US approach of looking for similarities between the original and allegedly infringing work.
The potential for greater scope of protection of short choreography in the UK means that videogame creators may need to carefully consider licensing arrangements if they incorporate or evoke popular dances in their games. While historically there have been few litigated copyright infringement claims brought by UK choreographers, the significant and developing market for in-game dance moves means that this is a space to watch.