On February 12, 2024, video game developer Epic Games, Inc. (“Epic”), and pop choreographer Kyle Hanagami (“Hanagami”) agreed to dismiss with prejudice a 2022 lawsuit accusing Epic of ripping off Hanagami’s dance moves for use in Epic’s popular video game “Fortnite.” The U.S. District Court for the Central District of California dismissed the lawsuit, finding that the short series of “poses” at issue was not copyrightable despite being a part of Hanagami’s copyright-protected, recorded five minute dance routine. The Ninth Circuit Court of Appeals reversed the decision, holding that “[r]educing choreography to ‘poses’ would be akin to reducing music to just ‘notes.’”
There is much uncertainty as to how courts will address claims of copyright infringement in the context of music videos and what remedies are available for creators whose works are copied. There is minimal case law, all of which is very fact-specific, and most lawsuits are abandoned or settled with undisclosed terms.
Choreographic works, costumes, sets and designs may be embodied in a motion picture or other audiovisual recording, including a music video. The choreography in a music video may be registered as a choreographic work, or as a contribution to a dramatic work or an audiovisual work, provided that the dance contains enough copyrightable content and that the dance is claimed as a distinct form of authorship in the application. The Copyright Act only protects a costume that “incorporates pictorial, graphic, or sculptural features that can be identified from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101.
Copyright protection can also extend to sets and props. In Sheehan v. MTV Networks, No. 89-CIV-6244 (LJF), 1992 U.S. Dist. LEXIS 3028 (S.D.N.Y. Mar. 12, 1992), the plaintiffs developed an idea for a game show involving music and music video trivia, which they sought to market to MTV. In their proposal, the plaintiffs provided written rules and a format for the show, artwork depicting the set and props, and a schematic drawing outlining some of the audiovisual aspects of the game show. While the defendant argued that the proposal did not qualify as a “work” under the Copyright Act, but instead was an idea for a work to be created later, the court rejected this reasoning and held that “even though a television game show is made up entirely of stock devices, an original selection, organization and presentation of such devices can nevertheless be protected, just as the original combination of words or notes that leads to a protectible book or song." Id. at *8, quoting 1930 Pat. App. LEXIS 267 (Pat. & Trademark Office Bd. App. April 18, 1930).
The following examples illustrate the prevalence of these disputes, even though the courts did not reach a decision.
Choreographer Accused Beyoncé of Plagiarizing
In 2011, Belgian choreographer Anne Teresa De Keersmaeker accused Beyoncé of plagiarizing dance moves, costumes, the set and certain shots from two of Keersmaeker’s pieces, “Achterland” from 1990 and “Rosas danst Roasas” from 1983, for Beyoncé’s music video for the song “Countdown.” In response to Keersmaeker’s allegations, Beyoncé confirmed using Keersemaeker’s pieces as inspiration for the video, in addition to the Audrey Hepburn film “Funny Face,” “the ‘60s, the ‘70s, Brigitte Bardot, Andy Warhol, Twiggy and Diana Ross.” Adria Petty, the director of the music video, admitted in an interview with MTV that she brought Beyoncé several modern dance videos during the process of brainstorming ideas for the video. This accusation, one of a number of plagiarism claims made against Beyoncé, did not result in a lawsuit and no financial agreement, if any, has been disclosed, but in some instances Beyoncé does give Keersmaeker a credit.
Artist Sued Kendrick Lamar for Copyright Infringement
In February 2018, British-Liberian artist Lina Iris Viktor (“Viktor”) sued Kendrick Lamar, SZA and others involved in the “Black Panther” film, alleging that her work was used without her permission in the artists’ music video for “All the Stars,” a song from the film’s soundtrack. The complaint alleged that “the scene from the Infringing Video intentionally copies the Original Works and is a blatant attempt to appropriate not only the immediately identifiable and unique look and feel of the Original Works, but also many of the specific copyrightable elements in the Original Works, including stylized motifs of mythical animals, gilded geometric forms on a black background, and distinctively textured areas and patterns, arrayed in a grid-like arrangement of forms.” Pursuant to the complaint, representatives from the film and Marvel’s PR team had approached Viktor on two separate occasions, asking Viktor to lend or create new works of art for the film.Viktor refused permission for her works to be used and no agreement was reached. In December 2018, Viktor agreed to settle the lawsuit. The parties did not disclose the terms of the settlement.
Sharon Stone Sued Rapper for Using Her Name and Likeness
In November 2019, actress Sharon Stone sued rapper Chanel West Coast over using her name and likeness for commercial purposes without her consent in Coast’s song and video titled “Sharon Stoned.” The song uses Stone’s name as the hook of the song, and the corresponding music video features recreations of some of Stone’s famous movie scenes, including the infamous interrogation scene from “Basic Instinct.” According to the complaint, the music video incorporated “the physical appearance, attributes, traits, looks, mannerisms, qualities, characteristics, clothing, treatment and imagery associated with Sharon Stone’s likeness, image, identity, and persona in the Basic Instinct Interrogation Scene.” Coast insisted that there had been months of conversations, in-person meetings with Stone and the director, dance rehearsals, and other collaborative efforts between the two parties. They eventually came to a settlement agreement.
T.I. Sued Toy Company for Stealing Name, Likeness and Trade Dress of Female Group
In December 2020, toy company MGA Entertainment sued rapper T.I. and his wife Tameka “Tiny” Harris after receiving a cease-and-desist letter accusing MGA Entertainment of stealing the name, likeness and trade dress of the all-girl group “OMG Girlz,” which featured Tiny’s daughter and rapper Lil Wayne’s daughter as original members of the group. T.I. and Tiny alleged that MGA Entertainment released its line of “L.O.L. Surprise! O.M.G.” dolls in the summer of 2019 with extremely similar looks made popular by the all-female group in music videos, live shows and appearances on T.I. and Tiny’s reality television shows. The MGA lawyer argued that many of the OMG Girlz’ looks that MGA supposedly copied were popularized by other musical artists over the years, including Rihanna’s blue hair, Katy Perry’s green hair, Lil Kim’s yellow hair and Nicki Minaj’s half white and half pink hair. The lawsuit ended in a mistrial after jurors heard barred testimony from a consumer accusing MGA Entertainment of “racist cultural appropriation.”
Artist Sued Taylor Swift for Copying Graphic Design Elements of Book for Album Cover
In August 2022, author Teresa La Dart sued Taylor Swift for allegedly copying graphic design elements from La Dart’s 2010 poetry book for use in Swift’s book accompanying her album “Lover.” La Dart pointed to several similarities between the two books, including the “pastel pinks and blues” on the cover, images of the authors “photographed in a downward pose” and the book’s “format,” specifically “a recollection of past years memorialized in a combination of written and pictorial components.” The case was voluntarily dismissed.
Musician Alleged that Olivia Rodrigo Copied Concept of Her Music Video
Following Olivia Rodrigo’s performance on Saturday Night Live (“SNL”) in December 2023, musician Noelle Denton, known professionally as Noelle Sucks, posted a Tik Tok video following the performance that displayed a side-by-side comparison of her 2021 music video for her song “Your Mom Calls Me,” which she allegedly conceptualized, directed, edited and set/prop designed, with Rodrigo’s SNL performance. Some of the similarities include the respective musicians at tea parties with friends, crawling on the table and smashing cakes with their hands and smearing it on their faces. The cinematography and choreography in both the music video and SNL performance also appear to resemble each other. To date, the dispute is being waged only on social media, but we will provide updates in the event there is a public settlement or litigation.
Conclusion
Despite the relative frequency of fact patterns that suggest copying without compensation, the preferred path remains settlement. Until more cases are heard in court or settlement terms are disclosed, there will be uncertainty as to how these allegations are handled, as well as different remedies depending on whether the claimed violation is plagiarism, copyright or name, likeness and trade dress, or some combination of all three. When third-party ideas are used, best practices require attribution to the original owner of the idea. Appropriate credit from high profile musicians can be career-changing for an unknown artist. Lutzker & Lutzker is available to guide artists and copyright holders in protecting their creative works and avoiding infringing the rights of other creatives.
The authors wish to acknowledge the reporting by The New York Times, Rolling Stone, NBClosangeles.com and MSN.com.