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Dance, Fortnite, and the “Epic” Battle for Copyright Protection

Sharona H. Sternberg

Sharona H. Sternberg | Partner View more articles

Sharona is a member of our Trademark Practice Group and Litigation Practice Group

On November 1, 2023, in a first-of-its kind decision, the Ninth Circuit revived a copyright lawsuit based on dance choreography. Hanagmi v. Epic Games pitted Viral celebrity choreographer Kyle Hanagami against Epic Games, owner of the incredibly popular Fortnite video game.

Hanagami claimed that Fortnite infringed his copyright by using his 2017 choreography for the song “How Long” by Charlie Puth, which has over 38 million views on YouTube. Hanagami has worked with world famous artists, including Jennifer Lopez, Britney Spears, and Justin Bieber, serves as faculty at top dance studios in L.A., and has partnered with Nike, Disney, Google and Netflix. He also has millions of subscribers across YouTube, Instagram, and TikTok.

Fortnite is one of the most popular video games of all time, generating over $26 billion in cumulative revenue. Fortnite offers buyable dances known as “emotes” in the game, which players’ avatars can use to celebrate victories or dance at virtual concerts. Epic charges players upwards of $5 to download its emotes. In February 2021, Hanagami sued Epic, alleging that one of the emotes, known as “It’s Complicated,” copies a distinct, four-count portion of his registered choreographic work from his “How Long” routine. Hanagami’s lawyers prepared a video comparing Hanagami’s choreography with the Fortnite emote, demonstrating the identical moves used by Hanagami’s dancers and the Fortnite avatars.

The Central District of California district court had previously dismissed the lawsuit on the grounds that Hanagami lacked protection for the individual “poses” in the choreography, and that the allegedly copied choreography was closer to an uncopyrightable “short” routine and comprised just a “small component” of the full five minute copyrighted choreography. Comparing the full choreography to the Fortnite emote, the district court found no substantial similarity.

The Ninth Circuit disagreed, finding this to be an error warranting reversal. In its decision, the Ninth Circuit delved into the history (and more importantly, the lack of history) involving the protection of choreographic works. Choreographic works were first included in the Copyright Act in 1976 – prior to then, only “dramatic compositions” that required dances to “depict some story or emotion” were protectable. However, even after it was finally recognized as its own protectable art form in 1976, the Act never defined the term “choreography,” and in the forty years since, few courts have addressed federal copyright protection for choreographic works, even calling it an “uncharted area of the law.”

In its decision, the Ninth Circuit adopted the Copyright Office’s Compendium’s definitions of “choreography” and “dance,” recognizing that choreography is a subset of, but not synonymous with, dance. The Compendium defines choreography as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.” Compendium § 805.1. Features of choreography include, but are not limited to, “rhythmic movement in a defined space,” “compositional arrangement,” “musical or textual accompaniment,” “dramatic content,” “presentation before an audience,” and “execution by skilled performers.”

The Ninth Circuit noted that individual movements or dance steps such as the basic waltz step, plie, or grapevine are not copyrightable, nor are individual dance elements (which the Ninth Circuit likened to individual words, numbers, colors, or shapes). However, the Ninth Circuit rejected the district court’s analysis of Hanagami’s choreography as an improper reduction to a series of individual poses, rather than considering the overall selection and arrangement of the poses. The Ninth Circuit agreed with Hanagami that aside from the “poses,” there are several other “expressive element[s] present in choreography,” including “body position, body shape, body actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast, [and] repetition.” There is no reason to treat choreography any differently than music, for example, the court ruled. Thus, in this case, the district court erred by ignoring these elements in its application of the substantial similarity test.

The Ninth Circuit also rejected the district court’s reliance on the amount of material copied: whether not only a small amount of the registered choreography was copied does not mean that the segment was a “simple routine” and insignificant. As the court found, “[s]hort does not always equate to simple.”

In fact, Hanagami is not the first choreographer to try to sue Epic Games based on the Fortnite “emotes.” In 2018, a slew of lawsuits were filed against Epic games, including by Alfonso Ribeiro, Brooklyn Rapper 2 Milly, and Instagram’s “Backpack Kid.” However, all of those lawsuits suffered the same fatal flaw that led to their dismissals: the chorographers had not first obtained copyright registrations with the U.S. Copyright office, which is now a prerequisite to filing suit. Alfonso Ribeiro, creator of the “Carlton” dance made famous by the show Fresh Prince of Bel-Air, garnered media attention based on his lawsuit, but the Copyright Office ultimately refused to accept at least one of his three copyright applications (calling his submission “a simple routine made up of three dance steps”), and called into question his ownership rights given that he created it while employed by the television show.

Although the Ninth Circuit was sympathetic to Hanagami’s case, this dance battle is far from over. Although the Hanagami case is revived, facing him is a potentially epic battle to prove infringement before a jury. Even so, this decision lays the groundwork for expanding and defining “the rights of choreographers and other creatives in the age of short-form digital media,” as Hanagami’s attorney has stated.

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