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LOS ANGELES (CNS) - A Los Angeles choreographer with a star-studded resume Wednesday won his appeal of a judge's dismissal of his claim that his copyrighted dance moves appeared in portions of the popular online video game Fortnite without his approval.
Kyle Hanagami filed suit in Los Angeles federal court last year against Fortnite developer and distributor Epic Games, claiming copyright infringement and unfair competition.
Hanagami alleged that the North Carolina-based game developer ripped off a portion of his copyrighted choreography and used the dance moves in Fortnite, which reportedly has more than 500 million registered users.
Hanagami -- who has worked for Jennifer Lopez, Britney Spears and Justin Bieber, among others -- had created a dance to singer Charlie Puth's song "How Long" and published a YouTube video of himself and others performing the moves in November 2017. He registered a copyright for the "How Long" choreography with the U.S. Copyright Office in 2021, court papers show.
Fortnite, a free multiplayer game set in a virtual world, allows players to purchase certain "virtual items" through an in-game marketplace. Among those items are "emotes" or animated movements and dances that Fortnite characters perform. Hanagami claimed that Epic Games copied a portion of his five-minute "How Long" dance for its Fortnite emote entitled "It's Complicated."
Hanagami claimed that Fortnite's emote contains "the most recognizable portion" of his choreography, occurring at the beginning of the song's chorus, the lawsuit alleges.
In May 2022, Epic brought a motion to dismiss Hanagami's complaint. The motion was granted by U.S. District Judge Stephen V. Wilson, who found that the plaintiff and defendant's works "do not share any creative elements."
Hanagami appealed to the U.S. 9th Circuit Court of Appeals, which heard arguments in August. A three-judge panel reversed the district court's dismissal Wednesday, sending the case back to Los Angeles federal court for further proceedings.
A message to the attorney who argued the case for Epic Games before the 9th Circuit was not immediately answered.
In its decision, the appeals court determined that Hanagami plausibly alleged that his choreography and Epic's emote shared "substantial similarities."
The panel held that, like other forms of copyrightable material such as music, choreography is composed of various elements that are unprotectable when viewed in isolation. But what is protectable is the choreographer's selection and arrangement of a work's otherwise unprotectable elements.
The choices Hanagami made in selecting and arranging elements of his "How Long" dance were substantially similar to the choices Epic made in creating the "It's Complicated" emote, the appellate court found.
"We conclude the district court erred in its application of the substantial similarity test as Hanagami plausibly alleged that his choreography and Epic's emote share substantial similarities," Judge Richard A. Paez wrote for the court's opinion.