Appeals court renews copyright battle over the Fortnite dance

Fortnite has a little dance in it that the game's characters can emote. Professional choreographer Kyle Hanagami claims he created it and that it was used without permission by Epic Games, publisher of Fortnite. He's obviously right, as with other dances in the game, unless there's prior art we're not being told about. But can you even apply copyright to a series of dance moves? A district court said no, but now an appeals court says maybe. The legal battle is back on, reports Wes Davis.

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 wrote this 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.

I'm reminded of type design: typefaces are generally not copyrightable, but fonts are copyrightable code that draws a typeface, and the names of typefaces may be trademarks.

Now, I don't know if the dance is deserving of copyright protection. But all the same, lurking behind all these cases (like the AI model training controversy) is a wealthy corporation unwilling to pay people for work being appropriated, and the imbalance in power, and in access to courts and capital, demands careful attention to the value being extracted. It's bad that they can anticipate all these legal problems and the foursquare still lands on "use work, don't pay."