Revived Fortnite Dance Suit Explores Rare Use of Copyright Law

A choreographer who’s worked with Jennifer Lopez and Justin Bieber got the Ninth Circuit to dance to his beat, possibly opening new doors in copyright law.

Epic Games Inc. will have to defend against Kyle Hanagami’s claim that the “It’s Complicated” dance move from its popular Fortnite video game stole choreography he created for a Charlie Puth music video. A lower court wrongly reduced the two-second sequence to eight unprotectable “poses” and found it too short to protect, the US Court of Appeals for the Ninth Circuit held.

The ruling lays down new circuit law that brevity doesn’t necessarily doom a complaint in a largely uncharted area of copyright law. The court said the segment Hanagami claimed was the most recognizable part of the 5 minute video seemed more complex than other short dance steps.

The district court will now have to reassess the suit under new parameters. Attorneys said the case gives choreographers novel leverage to press copyright claims against relatively short bursts of infringement.

“It’s a very good development for choreographers,” intellectual property attorney David Bea of Bea & VandenBerk said. “Choreography wasn’t recognized until the 1976 update to the Copyright Act and we just haven’t seen a lot of cases. We need that area to be filled in.”

The opening comes as short dance moves have become more culturally ubiquitous, featured in viral TikTok videos in addition to Fortnite emotes—the game’s term for character actions. IP law professor Cathay Y.N. Smith of the University of Montana referred to the case as part of “growing pains” as courts try to figure out what is and isn’t protectable or infringing in choreography.

“We’re creating these new dance stars every month; Jiggle Jiggle, Bloody Mary,” and other examples as social media platforms encourage copying and sharing, she said. “It does seem like it’s time for more boundaries to be discussed.”

Question for a Jury

Several parties sued Epic Games in 2018 and 2019 over emotes, but the video game company successfully fended off the complaints.

Musician 2 Milly and actor Alfonso Ribeiro dropped their suits after the Copyright Office refused to register “Milly Rock” and “The Carlton” dance moves. Lawsuits over “Flossing” and a saxaphonists’ viral moves were also dropped, the latter after a judge dismissed most of the suit’s claims.

Hanagami successfully registered a copyright covering the choreography he crafted for Puth’s 2017 song “How Long” before filing his lawsuit in 2022. But the US District Court for the Central District of California dismissed the claim.

The Copyright Act wasn’t meant to cover “social dance steps and simple routines,” the district court said, quoting the legislative record. But the appeals court said the two-second “It’s Complicated” move appears “far more complex” than others.

The panel said choreography, like other art forms, is often composed of unprotectable elements chosen and arranged in a protectable way. The lower court’s reduction of the ''It’s Complicated’’ sequence to “poses” ignored elements like “body position, body shape, body actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast, and repetition,” it said.

The Ninth Circuit also rejected the finding that the emote was too short and too small a part of the overall work, saying “the proper inquiry does not turn on the mere length of the copied material.”

The rapid-fire eight-movement sequence appeared four times in the full routine, and Hanagami plausibly alleges it was the most recognizable and distinctive part, the opinion said. The court cited a continuum of copyrightable choreography and uncopyrightable dance, and said Hanagami’s snippet “may well fall somewhere in the middle.”

Owen J. Sloane, an entertainment and IP attorney for Eisner LLP, said he agreed with the appeals court’s ruling.

“It’s a lot more than just poses; it’s integrated,” Sloane said. “The question is how much and how important was the part that was used. And I think that’s a question for a fact-finder, a jury.”

‘More Leverage’

Bea has experience litigating choreographer IP fights: he successfully enforced, through settlements, Anthony Thomas’ choreography copyright for Janet Jackson’s 1989 “Rhythm Nation” music video. He said the Ninth Circuit ruling leaves choreographers with “more leverage now, for sure.” Other attorneys agreed.

“This case potentially reinvigorates some litigation around emotes and video games,” IP attorney Darius C. Gambino of Saul Ewing LLP said. “Do you need something longer than just a short choreographed routine? I think the Ninth Circuit here is saying ‘maybe not.’”

Gambino, who has represented video game companies, said they “are all going to take note” and consider possible ramifications when incorporating dance moves.

That may be especially true when linking dances directly to revenue. In Fortnite, players can pay real money for virtual currency used to acquire emotes—as well as earning the currency in-game. That kind of arrangement can undermine claims of de minimis use and help establish concrete monetary awards.

“This is a direct link back to the person’s choreography and the value you’re getting from selling those emotes,” Smith said. “I don’t see other areas where there’s a direct link to commercial monetary gains the way you do with downloadable content with video games.”

Even without payment, the snippets implicitly had more value to Epic Games than the moves in Hanagami’s routine it didn’t use. Smith said the emotes in general might not “be as fun” if not for the dance moves’ recognizable place in the broader culture.

“It increases the ‘ick’ factor,” Smith said of the link between revenue and using creators’ work.

Finding IP Harmony

A lower bar for choreographers to clear a dismissal bid raises the prospect of largely frivolous lawsuits dragging on for months at significant costs.

Such complaints have arisen over music copyright law—an art the Ninth Circuit analogized to choreography.

“As long as you have people out there who can find attorneys to bring cases, there are always going to be cases on the borderline,” Gambino said. “I hope the more and more case law is out there, the better advice is given to plaintiffs.”

But Gambino, echoing others, said he isn’t concerned about “major overreach.” He noted the Ninth Circuit itself said the court won’t protect building blocks—individual movements, tempo, transitions and rhythm, akin to unprotectable “words and short phrases” in written works.

The question of delineating those building blocks remains open, though. Smith saw a distinction between the complexity of “It’s Complicated” as opposed to other moves claimed in Fortnite suits. But it’s unclear whether Hanagami could register and protect the snippet by itself, rather than protect it as part of the larger routine.

“Would Kyle be able to get a copyright in just that move? That’s sort of a big question here,” art IP law attorney Amelia K. Brankov of Brankov PLLC said.

Further, if the other Fortnite plaintiffs’ moves were part of longer registered routines like Hanagami’s, it’s unclear whether that could have saved their claims. Hanagami only got his more complex move past dismissal, a stage where every unclear aspect is decided in his favor.

Another variable in an analysis, for example, would be the importance of the allegedly stolen snippet to the original work, as well as importance to the new work.

Because of the case-specific, multifaceted nature of copyright analyses, Brankov said people shouldn’t read to much into the reach of Hanagami’s case. But she and others said the way the lower court handles this case could provide clues for the future.

Still, she said, the Ninth Circuit’s reversal of the district court’s “myopic approach” to choreography represents a change.

“Choreography has arrived late to the party,” she said “It sort of opens the door to dance being a more respected category of art under the law.”

The case is Kyle Hanagami v. Epic Games Inc., 9th Cir., No. 22-55890, Docket.