Fortnite Dance Ruling Teaches a Lesson on Creative Content Use

Digital creations, virtual experiences, and business behaviors increasingly intersect with artistic expression. A Nov. 1 court ruling defining the boundaries of legal protection for choreographic works marks a pivotal moment in copyright law, with significant implications for unsuspecting businesses.

Epic Games Inc. is the creator of the Fortnite video game, which features an extensive virtual world. Players represent themselves through customizable characters and can even purchase character animations, or emotes, to celebrate in-game.

In 2020, Epic released a new version of Fortnite that included a new emote called “It’s Complicated.” This two-second sequence of dance moves landed Epic in a copyright dispute with celebrity choreographer Kyle Hanagami.

Hanagami’s lawsuit at first seemed destined to go the way of earlier legal challenges alleging copyright infringement of dance routines, which have been fended off by Epic and others. Adopting a narrow interpretation of copyright protection for choreographic works, the lower district court dismissed Hanagami’s case. But the US Court of Appeals for the Ninth Circuit revived the lawsuit, ruling that Hanagami’s claims for copyright infringement of his registered choreography can proceed.

Businesses should treat this ruling as a lesson and a warning. Most businesses rely on various types of media content to promote themselves online. They also use media content internally for training purposes. However, such use can easily cross the line into infringement as a new generation of creators seeks copyright protection for works that originate as social content.

Hanagami’s bona fides include routines for Jennifer Lopez, Alicia Keys, and Justin Bieber, and a YouTube channel with more than 4.5 million subscribers. In 2017, Hanagami posted a dance routine set to the song “How Long” by Charlie Puth, five minutes of choreography for which he owns a valid copyright registration. According to Hanagami, the “It’s Complicated” emote, with a distinctive, four-count dance, copied the most recognizable portion of his routine.

The lower court interpreted Hanagami’s choreography as “a number of individual poses” that, when viewed in isolation, lacked the creativity necessary for copyright protection. Because the portion alleged to be copied was comparable to an un-copyrightable short routine and constituted only a small part of the copyrighted material, the lower court concluded that Hanagami couldn’t state a claim for copyright infringement.

The Ninth Circuit took a more expansive view of the boundaries of copyright protection for choreography. The court emphasized that choreographic copyright protection, much like that for musical composition, includes the creative selection and arrangement of movements, tempo, transitions, rhythm, and the overall composition.

The ruling directed that when assessing substantial similarity, the consideration of poses alone—without the other creative pieces—was “simply not dynamic enough to capture the full range of creative expression of a choreographic work.” Rather, all elements should be considered.

Applying this nuanced analysis to Hanagami’s choreography, the court reasoned that the copied portion had substantial significance to the work and could support a copyright infringement claim even though it was only a short piece of the choreography “as a whole.”

The Ninth Circuit’s decision recognizes the complexity and creativity inherent in choreographic works, regardless of their duration or the proportion they occupy in a larger choreography. The ruling extends the copyright protection scope for choreographers, safeguarding significant, qualitatively impactful, and original portions of a work in addition to complete works.

Using brief excerpts from creative works for business purposes could create legal consequences. A business doesn’t have to use a choreographer’s distinctive dance move in a massively popular game to be accused of infringing copyright protections. If Hanagami prevails, just using his four-count dance in a training video might lead to a lawsuit.

Businesses that incorporate dance moves and other artistic elements into their products, especially in digital formats, must exercise greater diligence to ensure that any segment of choreography used is original, licensed, or outside the scope of copyright protection.

They also should be careful when using clips from movies, music videos, YouTube, and social media reels, as the boundaries of what is protected under copyright law continue to expand. Companies should expect more legal challenges—and the need for robust intellectual property strategies.

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

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Adrianna Chavez is an associate at Stinson and focuses on brand protection, software copyright ownership, and intellectual property infringement litigation.

Ruth Rivard is partner at Stinson and focuses on patent, copyright, trademark, false advertising, unfair competition litigation, and brand management.

Write for Us: Author Guidelines