Our first runner-up spot this week goes to Kirkland & Ellis IP litigation partners Dale Cendali and Joshua Simmons. In the first judicial opinion in the U.S. to consider whether dance steps are copyrightable, the Kirkland lawyers persuaded U.S. District Judge Stephen Wilson in Los Angeles that client Epic Games had not infringed a copyright held by celebrity choreographer Kyle Hanagami. Hanagami had alleged that an emote, or celebratory dance move, available for purchase by players in Epic’s “Fortnite” video game copied two seconds of his five-minute choreography to Charlie Puth’s song “How Long.” But Wilson found “no authority to suggest that plaintiff’s steps are protectable when viewed out of the context of the whole of plaintiff’s work; indeed, the weight of authority suggests otherwise.” The judge also noted that while Hanagami’s choreographed dance is performed by humans in the physical world, the emote involves animated characters in a virtual world. The Kirkland team representing Epic Games also included IP litigation associates Yungmoon Chang and Justin Taylor.
Runners-up honors also go to a separate Kirkland team representing Honeywell International Inc. in a long-running False Claims Act case where the company had been facing about $35 million in potential damages stemming from allegedly faulty bulletproof vests supplied to government agencies. The D.C. Circuit this week agreed that any damages Honeywell owes if found liable should be reduced by the tally from settlements the government previously reached with other companies, adopting the so-called pro tanto rule for the apportionment of settlement offsets under the FCA. “We recognize that in cases such as this where the government has already recouped its full damages from settling parties, a non-settling party like Honeywell will escape paying damages under the pro tanto rule,” wrote Judge Naomi Rao. “Nevertheless, consistent with the FCA, the pro tanto rule leaves the government in the driver’s seat to pursue and punish false claims according to its priorities.” The Kirkland team was led by Craig Primis, who argued the appeal for Honeywell, and partners Katherine Katz and Holly Trogdon, and included litigation associate Kate Epstein. Former Kirkland associate James Xi, who is now at Clement & Murphy, was on the briefs for Honeywell alongside Primis.
