Like a blast from the distant past of 2018, Epic Games is being sued over a Fortnite emote. This time around it's the "It's Complicated" emote, which plaintiff Kyle Hanagami says is an unauthorized copy of the dance he choreographed for Charlie Puth's 2017 song How Long.
Epic faced multiple lawsuits over Fortnite emotes in 2018-19, filed by 2 Milly, Alfonso Ribeiro, and Orange Shirt Kid's mom, among others. In general, they claimed that Epic ripped off distinctive dance moves for use in Fortnite without crediting or paying the people who actually created them. This new lawsuit says the "outcry on social media" driven by those previous actions helped pressure Epic into doing licensing deals with some, but not all, creators—and that Hanagami was not made an offer for the use of his work.
"Epic typically approaches young and/or less sophisticated artists, like those who are catapulted to fame on social media platforms like TikTok, about licensing choreography for pennies on the dollar," the lawsuit states. "Hanagami, a sophisticated businessman and established choreographer who is aware of the value of his choreography generally and the Registered Choreography specifically, was never approached by Epic about a license."
Fortnite emote lawsuits came to a sudden halt in 2019 because of a US Supreme Court decision that changed how copyright lawsuits could be filed. Previously, action could be taken as soon as a copyright application had been registered, but the 2019 ruling declared that lawsuits could only be filed after the Copyright Office had either approved or rejected an application, a process that could sometimes take many months.
Attorney David Hecht, who is representing Hanagami in the suit, said that's what makes this case different from the previous emote lawsuits: The copyright on the choreography is registered, and that makes it enforceable.
“Epic is profiting from my client’s hard work, and their infringement could not be more blatant," Hecht said in an email to PC Gamer. "Epic’s sale of Kyle’s registered choreography as an item in the Fortnite Item Shop without his knowledge or authorization is fundamentally unfair. He felt compelled to file suit to stand up for the many choreographers whose work is similarly misappropriated. Copyright law protects choreography just as it does for other forms of artistic expression. Epic should respect that fact and pay to license the artistic creations of others before selling them.”
Hecht, who represented 2 Milly in his 2018 lawsuit against Epic over the Swipe It emote, also created a video showcasing the similarities between How Long and the It's Complicated emote.
There's no denying that they're virtually identical, but that doesn't make the case a lock. The It's Complicated emote only features a small portion of the How Long choreography, for one thing, and it also includes moves that are not part of Hanagami's dance. And according to a 2021 report by Dance Magazine, choreography copyrights are inherently difficult to enforce because there's very little precedent.
"What we’re really missing, I think, is the amount of litigation required to fully understand what the elements of copyright infringement for choreography are," attorney Gregory Desantis told the site. "There simply aren’t a lot of cases to base litigation off of. In court, lawyers will base many of their arguments on previous case results. Because dance has very few cases in copyright, it is difficult to take to court."
Hanagami is seeking an injunction against the use of his work in Fortnite, as well as damages and legal costs. I've reached out to Epic for comment and will update if I receive a reply.
