Epic Can’t Defend ‘Misapplication’ of ‘Extrinsic Test’ for Infringement: Hanagami

Epic Games is trying to “flip the script” when it argues that it’s not “the blatant copying and reselling of choreographic works that would harm choreographers,” but the choreographers’ “attempt to enforce their rights that harms them,” said choreographer Kyle Hanagami’s reply brief Friday (docket 22-55890) at the 9th U.S. Circuit Court of Appeals. “Epic should have to actually prove such a spurious claim,” said the brief. Hanagami is seeking to set aside the district court’s dismissal of his claims that Epic stole his copyrighted dance moves for its Fortnite franchise (see 2301310037). Epic argued in its answering brief that the dismissal was “consistent” with the Copyright Act, 9th Circuit case law and Copyright Office regulations (see 2304030002). But Epic doesn’t “adequately address” the district court’s “erroneous application of the extrinsic test portion of the substantial similarity test for copyright infringement,” said Hanagami’s reply. The district court “appears to have held, when applying the extrinsic test, that anyone can copy a choreographic work as long as they fall short of copying the entirety of that work,” it said. “This is a misapplication of the extrinsic test, which was meant to filter out situations where there is obviously no infringement.” The extrinsic test wasn’t meant “to give a free pass to those who happen to copy less than the totality of a work,” it said. Epic doesn’t address that, but instead “focuses its argument on whether or not the specific dance steps that Epic misappropriated here should be entitled to copyright protection,” it said. The district court “accepted Epic’s main argument that the infringed portion of the work must, standing alone, qualify for copyright protection,” it said. But neither Epic nor the district court’s decision provides “any justification for such a limit on the ability of choreographers to protect their work,” it said.