9th Circuit Advances Lawsuit Over Fortnite ‘Emotes;’ Says Dance Moves Are As Protected As Songs
As the completely normal parents of two completely normal teen boys, I was sincerely hoping I would never have to write about Fortnite again.
This is not to say there's anything particularly wrong with Fortnite, the free-to-play arena shooter/Minecraft that took the online world by storm. Epic Games recognized its new field of cash cows for what it was: a zero-paywall cultural phenomenon that soon became famous for how much cash a free" game could generate.
Micro- and macro-transactions were in play. First and foremost were the game's infamous emotes," dances purchasers could trigger at the drop of a button while idling in lobbies or gloating over the corpses of their foes.
A not-insignificant amount of money has been spent on digital dancing. A not-insignificant amount of digital ink has been spilled covering the rush to federal courts by individuals who believe their dance moves have been illegally" duplicated by Fortnite's definitely-not-free emotes."
At this point, it's hard to remember what the hype was, considering any number of games - free-to-play or not - have leveraged players' desire for cosmetics to rake in heaps of cash. But the idea of pay-to-play dancing seems far more egregious than other accouterments like, say, horse armor.
And maybe it's just me. I want to move forward to the meat of this post - a discussion of copyright law vis-a-vis cosmetic emotes" - but I feel I'm held back by being... well... me.
As noted above, I'm a normal parent of normal, extremely-gaming-online teens. The thought of paying for things like this (and that's on top of paying for season passes, battle passes, and other online chicanery) will always raise my hackles. And hackle-raising is something long since regulated to the parental and grandparental figures of my past, who always reminded me we weren't paying to heat the outside (close the door!) and/or paying to provide electric lights to rooms currently inhabited by no one.
Now, at my advanced age, I'm afraid handling this subject matter will make me seem like an ungodly blend of Principal Seymour Skinner (No, it's the children who are wrong.") and the preacher played by John Lithgow in Flashdance," the amazing piece of pop culture that has ensured Kevin Bacon will never not be part of our collective pop culture.
That being said, it's the Ninth Circuit Appeals Court who is wrong. Many courts have already dealt with these lawsuits-come-lately filed by opportunistic people who failed to capitalize on their own pop culture cache but thought it was worth throwing a few hundred dollars in filing fees towards a federal court in hopes that the eventual payoff would be millions.
Most of these efforts have failed. Dance moves are tough to copyright, considering they're often not a cohesive form of expression. On top of that, there's a whole lot of independent invention because the human body is only capable of so many dance moves that portray talent, rather than just an inability to control your limbs.
Hence the federal court's general hesitance to proclaim controlled flailing protectable. And hence the failure of most these Fortnite-is-worth-millions lawsuits written by people with dollar signs for eyes and Web 2.0 ambulance chasers for lawyers.
But one of these lawsuits has been revived by the Ninth Circuit, which has decided a certain number of sequential dance steps is actual intellectual property worth suing over. Here's Wes Davis with more details for The Verge:
This week, a panel of US appeals court judges has renewed the legal battle overFortnitedance moves by reversingthe dismissalof a lawsuitfiled last yearby professional choreographer Kyle Hanagami against Epic Games.
[...]
Thelower court saidchoreographic works are made up of poses that aren't protectable alone.It found that the steps and poses of dance choreography used by characters inFortnitewere not substantially similar, other than the four identical counts of poses" because they don't share any creative elements" with Hanagami's work.
The 9th Circuit panel agreed with the lower court that choreography is composed of various elements that are unprotectable when viewed in isolation." However,Judge Richard Paez wrotethis week that referring to portions of choreography as poses" was like calling music just notes.'" They also found that choreography can involve other elements like timing, use of space, and even the energy of the performance.
This is a strange conclusion to reach given prior case law on the subject. But a lot of prior Fortnite case law is based on the fact that complainants never made any attempt to copyright their moves, but rather decided they were owed a living by Fortnite's producer (Epic Games) simply because Fortnite (and Epic Games) were extremely successful.
That's not the case here, as the Ninth Circuit [PDF] notes:
Plaintiff Kyle Hanagami (Hanagami") is a celebrity choreographer who owns a validly registered copyright in a five-minute choreographic work.
That's a point in Hanagami's favor. Whether or not this particular expression is protected under copyright law is no longer an open question. It has been registered with the US Copyright office, thus making it possible for Hanagami to seek a payout that far exceeds actual damages that can be proven in court.
As was noted above, the lower court compared Hanagami's registered work with the allegedly infringing emote" and found that, at best, only small parts had been copied.
The Ninth Circuit disagrees.
The district court erred by ruling that, as a matter of law, the Steps are unprotectable because they are relatively brief. Hanagami has more than plausibly alleged that the four-count portion has substantial qualitative significance to the overall Registered Choreography. The four counts in question are repeated eight times throughout the Registered Choreography, corresponding to the chorus and titular lyrics of the accompanying song. Hanagami alleges that the segment is the most recognizable and distinctive portion of his work, similar to the chorus of a song. Whether or not a jury would ultimately find the copied portion to be qualitatively significant is a question for another day. We conclude only that the district court erred in dismissing Hanagami's copyright claim on the basis that Epic allegedly infringed only a relatively small amount of the Registered Choreography.
This allows the lawsuit to move forward. The Ninth Circuit does not establish a bright line ruling that would encourage/deter similar lawsuits. Nor does it establish a baseline to guide future rulings. Instead, it simply says some choreography is distinctive enough plaintiffs can sue over alleged infringement, but most likely, it will be a jury deciding these facts, rather than a judge handling motions to dismiss.
So... maybe that's ok? I can understand the point that distinctive progressive dance steps are as significant as distinctive chord progressions when it comes to expression that can be copyrighted. But, on the other hand, the lack of guidance from the appellate level encourages speculative litigation because it refuses to make a call one way or the other but simply decides the lower court is (1) wrong and (2) should handle all the tough questions itself.
Where this ends up is tough to say. But, for now, it guarantees someone who rues every emote" purchase made for my persistent offspring will only become more get off my lawn" as this litigation progresses.