Facts

Kyle Hanagami is a professional choreographer and dance instructor in Los Angeles, California. On November 11, 2017, he published a 5-minute YouTube video of himself and others dancing to the song "How Long," by Charlie Puth that included five different groups of two or three dancers performing the same choreography. The video as of the time of the complaint had nearly 36 million views. The video was registered with the United States Copyright Office on February 20, 2021, at Copyright Registration Number PA 2-277-839 and covered the 'How Long' Choreography but excluded music from the registration. Epic Games, Inc. is a video game company that develops and distributes various video games, including the popular free-to-play multiplayer shooter Fortnite. Fortnite players can purchase emotes, which are animated movements or dances that the player's avatar can perform in game. Fortnite made approximately $5.1 billion in 2020. Hanagami brought a lawsuit against Epic in the United States District Court for the Central District, alleging violations of the Copyright Act and California's Unfair Competition Law.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that the "It's Complicated" emote in Fortnite contained the most recognizable portion of plaintiff's Registered Choreography, the portion for the hook at the beginning of the chorus of the song. Further, plaintiff alleged that defendant infringed and may continue to infringe on Hanagami's Registered Choreography by selling the "It's Complicated" emote as an in-game purchase, substantially copying the Registered Choreography in digital form in the Fortnite game, and actively and knowingly directing, causing, inducing, and encouraging others to misappropriate the Registered Choreography. Plaintiff maintained that defendant did not seek to obtain plaintiff's permission for its use of the Registered Choreography nor compensate or credit plaintiff for their use. This willful and continued unauthorized use of the Registered Choreography for commercial gain has caused and will continue to cause confusion and mistake by leading the public to associate the "It's Complicated" emote with the Registered Choreography. Plaintiff argued that as a direct and proximate result of defendant's conduct, plaintiff has been damaged by being precluded from receiving his rightful share of defendant's profits from their improper and unlicensed use of the Registered Choreography. Finally, plaintiff argued that defendant engaged in business acts or practices that constituted unfair competition because the emote gave the false impression that plaintiff endorsed Fortnite.

DEFENDANT'S CONTENTIONS: Defendant alleged that the two works taken as a whole were not substantially similar, and the individual poses in the choreography were not protectable since they were merely social dance steps and simple routines. Moreover, defendant contended that the state-law unfair competition claims were preempted because they were based on the copying of plaintiff's Registered Choreography.

Result

The court granted defendant's motion to dismiss as to all claims.