Epic Games Settles Fortnite Dance Copyright Dispute - Update on OpenAI v Authors

Epic Games Settles Fortnite Dance Copyright Dispute

In a recent development, Epic Games, the company behind the hugely popular video game Fortnite, has agreed a settlement with pop choreographer Kyle Hanagami in a dispute over a dance move featured in the game.

The agreement, reached on 12 February, represents the end of a legal battle initiated in the US by Hanagami, who accused Epic Games of infringing his copyrighted choreography by incorporating elements of it into a virtual animation, known as an emote, that players could purchase in Fortnite.

Choreographer Kyle Hanagami is recognised for his work with high-profile artists including Jennifer Lopez, Britney Spears and Justin Bieber. He had filed a lawsuit against Epic Games, claiming that the game developer had misappropriated his dance moves for financial gain. In particular, a routine he had designed for a Charlie Puth song.

Hanagami’s claim was originally dismissed in August 2022, as the California District Court  Judge held that Epic Games' dance moves were merely basic 'poses' and a 'short' sequence that didn't meet the creative threshold for copyright protection. However, in November 2023, the 9th Circuit Court of Appeals overturned this decision.

The Appeal Court held that a choreography goes beyond 'poses', in the same way that music goes beyond simply a sequence of notes. Choreography is the arrangement of dance movements into a coherent whole, where the creativity of the choreographer is the most important factor. While 'poses' are part of it, they're not enough to capture his full creativity. The court considered factors such as body position, shape, actions, transitions and timing. It therefore held that the judge in the District Court had been too quick in dismissing the copyright claims brought forward by Hanagami and therefore held that the court was to be redecided in the light of these conclusions regarding the copyright protection of choreographies.

The new trial was set to take place at a later date in 2024. The parties however reached an agreement and settled the dispute. It should be noted that in previous cases, Epic successfully defended itself against other people claiming copyright in choreographies. For instance, Alfonso Ribeiro, the actor who played Carlton Banks in The Fresh Prince of Bel Air, filed a lawsuit against Epic Games in 2019 over Carlton's dance, which was dismissed. In the same year, professional saxophonist Leo Pellegrino filed a lawsuit against Epic for stealing his "signature move" as an emote in Fortnite.

The Court Rules on Copyright Case OpenAI v Renowned Authors

The court has ruled in the case between tech company OpenAI and well-known authors including Paul Tremblay, Mona Awad and comedian Sara Silverman.

As we discussed in our previous blog, in the summer of 2023, authors Paul Tremblay and Mona Awad filed a class action lawsuit against OpenAI in federal court in San Francisco, accusing the tech company of copyright infringement by training its artificial intelligence, ChatGPT, with unauthorised copies of copyrighted works.

The court dismissed the copyright infringement claim because there was insufficient evidence that the tech company had reproduced or distributed the publishers' copyrighted works. The judge who heard the case expressed scepticism about the authors' claims in relation to copyright. In particular, she casted doubts on the assertion that OpenAI had deliberately removed copyright information. She noted that the authors had not proved any financial loss as a result of OpenAI's actions, nor had they verified that ChatGPT's responses contained direct excerpts from their literary works.

However, the court also ruled that the unfair competition claim could stand because it focused on broader business practices that were considered unfair, such as OpenAI's unauthorised use of the copyrighted works which could be considered “unfair”, without in itself meeting the legal threshold for copyright infringement.