Stolen Dance Steps in Fortnite’s Fortune: Resisting Ineffective Choreography Copyright Protection in Hanagami v. Epic Games, Inc.

In contrast to the well-known copyright lawsuits in art disciplines such as music, it is rare to come across a copyright case in dance. Indeed, it was not until 1976 that choreography even became a category qualifying for copyright registration and protection. Although the limited copyright lawsuits in dance since 1976 have mostly involved defendants that were other choreographers or artists, the video game Fortnite has become a “plagiarizer” of dance moves causing choreographers to seek legal redress.

Though it is free to play Fortnite, it costs money to make an in-game character dance. Players can purchase “emotes,” which are often digital, differently named renderings of familiar pop culture dances such as the “Milly Rock” and the “Floss.” In 2022, choreographer Kyle Hanagami filed a plaint in California against Fortnite-maker Epic Games, Inc. for copying four counts of his choreography to Charlie Puth’s “How Long” in the making of Fortnite’s emote called “It’s Complicated.” The four-count dance sequence (the Steps) is at the beginning of the chorus and is the highlight portion of Hanagami’s choreography to “How Long,” which has amassed over 38 million views on YouTube. For a copyright infringement to succeed in California, the case must pass the extrinsic and intrinsic tests of the “substantial similarity” analysis. [1] Epic Games won dismissal in August 2022 because the district court deemed the Steps an unprotectable element, hence concluding the failure of the extrinsic test of the “substantial similarity” analysis. A year later, the Ninth Circuit reversed the dismissal, stating that the district court erred in its application and judgment of the extrinsic test. Analogous precedents in other artistic disciplines and analysis of present copyright statues support the Ninth Circuit’s decision that “It’s Complicated” is substantially similar to Hanagami’s choreography under both the extrinsic and intrinsic tests. Further, the Fortnite-creator’s monetary use of the Steps does not constitute a legitimate fair use defense, so the court should find Epic Games liable for copyright infringement.

The rarity of a dance-related copyright lawsuit like Hanagami suing Epic Games can be explained by the delayed inclusion of choreography in copyright law. The 1976 Copyright Act (the Act) is the first federal copyright statute that includes “choreographic works” as a subject of protection. Under the prior law, the 1909 Copyright Act, choreography could only register for copyright protection under the category of “dramatic compositions,” implying that dance works lacking a dramatic or theatrical concept could not be copyrighted or protected under copyright law. [2] The relatively recent inclusion of dance and choreography in federal copyright law, combined with the ephemeral and bodily nature of dance compared to other artistic disciplines, has led to a paucity of case law for dance. However, the lack of case law should not prevent current choreographers from pursuing protection over the misuse of their artistic creations. Courts must instead employ apt analogies between choreography and other arts to leverage the more robust case law of other artistic disciplines to help make legally sound judgments in choreography cases.

Hanagami has the legitimate right to sue for infringement because he has registered his choreography to “How Long” with the United States Copyright Office. Although all works are within the purview of copyright law, artists can only sue for copyright infringement if their work is officially registered for copyright with the U.S. Copyright Office. Other creators of choreography that have been copied by Fortnite before Hanagami have sought to pursue legal action, but they were deterred because their choreography has not been registered. For example, 2 Milly, the original creator of the “Milly Rock,” openly expressed the wish to sue the Fortnite creator over the plagiarized emote “Swipe It.” [3] Yet 2 Milly dropped their lawsuit due to the “Milly Rock” being unregistered, hence not qualifying for the filing of an infringement action. It is difficult to register choreography such as the “Milly Rock” because of its brevity and widespread social usage, for the Act explicitly excludes “social dance steps and simple routines” from copyright protection. [4] In contrast, Hanagami’s choreography was registered because it is not a sequence of commonplace movement, nor does it lack a sufficient amount of authorship. The concern, which has warranted opposing interpretations from the lower and higher courts, is whether the four-beat sequence of dance steps in the chorus of Hanagami’s choreography is protected.

The district court’s judgment was flawed because the Steps should be considered a protectable element of Hanagami’s full dance piece and pass the extrinsic test. The first step of the extrinsic test of the “substantial similarity” analysis is to filter out the unprotectable aspects of the plaintiff’s works.Then, the second step is to compare the remaining protectable elements to the corresponding parts of the defendant’s work to assess the level of objective similarity. [5] In order to determine if the Steps are protectable, the district court relied on an poorly analogous case in photography: Rentmeester v. Nike, Inc. (2018).

In 2015, photographer Jacobus Rentmeester sued Nike for infringing on a famous photograph he took of Michael Jordan and accused Nike of copying that photo to create the “Jumpman” logo. The ruling in Rentmeester v. Nike, Inc. (2018) favored Nike because the court determined that the original photograph is made up of individual elements of photography that are not protectable when considered alone, thus failing the extrinsic test of substantial similarity. [6] Most elements that make up the photograph are artistic choices that do not qualify as elements that can be plagiarized, and only plagiarized elements can be subjected to the similarity assessment. The court thus concluded that what was protectable was not similar enough to Nike’s photograph and logo to establish an infringement. [7] In Hanagami’s case, the district court applied the same logic to choreography, stating that the Steps are composed of ten individual poses that, when viewed in isolation, are unprotectable elements akin to choices in photography such as angle and shutter speed. [8] This application is inappropriate because the choreography cannot be reduced to poses—without any consideration of in-between pathways, timing, rhythm, texture, etc.—the same way photographs can logically be broken down into certain settings and techniques.

Even if the Steps are legitimately reducible to a series of poses, the district court should have considered Horgan v. Macmillan, Inc. (1986)—a dance case that demonstrates still poses in choreography are protectable elements. Barbara Horgan, the owner of ballet choreographer George Balanchine’s estate, sued the MacMillan Publishers for using pictures of Balanchine in the studio in their book The Nutcracker: A Story and Ballet on the grounds of copyright infringement. The district court ruled in favor of MacMillan, stating that the photographs were not an infringement because Balanchine’s choreography could not be recreated from the static pictures alone. [9] The appellate court reversed the district court’s ruling. Chief Judge Wilfred Feinberg emphasized the complexity of one choreographic moment. He used the example of the photo of a dancer in the middle of jumping through a hoop to show how one can derive from that photo not only that pose but the whole movement, for the law of gravity implies the dancer had jumped from the floor only a moment earlier and came down shortly after. [10]

Notably, in one of the earliest copyright cases involving choreography and poses, the court has established a “pose” in choreography to be in nature very different from one isolated element in a discipline like photography. Thus, even if the district court was precise in simplifying the Steps into ten poses, each posed moment should be considered a protectable component. Instead of accepting the district court’s ideological conception of choreography, the Ninth Circuit based its argument for reversal on finding a more appropriate cross-discipline precedent in the music world. Using Swirsky v. Carey (2004), the Ninth Circuit specified that simplifying the Steps into individual poses is contrary to how other copyrightable art forms more similar to choreography in dynamics, such as musical composition, are analyzed. [11]

Swirsky v. Carey (2004) demonstrates that the Steps were protectable under copyright law despite its brevity, supporting the Ninth Circuit’s decision that there is substantial similarity between the Steps and the emote. Swirsky v. Carey was a copyright suit between two R&B songs, where the plaintiffs accused the defendant of infringement in the chorus of the song. In the court opinion, judges mentioned the Elsmere Music, Inc. v. Nat’l Broad. Co. decision in 1980, which held that four notes were substantial enough to be protected by copyright. [12] The court emphasized that although a single musical note would be too small a unit to attract copyright protection, an arrangement of a limited number of notes can garner copyright protection. [13] Similarly, it cannot be said as a matter of law that four beats of choreography is too short a length to garner copyright protection. Accepting the Steps each as protectable under copyright law, the Ninth Circuit then concluded that there is substantial similarity between the Steps and that copied by Epic Games in Fortnite’s emote “It’s Complicated.” Though the emote is not set to the same music as the Steps, the copied choreography matches the Steps completely in body position, timing, pauses, and energy.

After determining substantial similarity in a copyright infringement case, the defendant can argue for fair use. However, the Fortnite creator’s use of the Steps does not constitute fair use because the emotes, integral to Fortnite’s business model, are designed for profit gain. According to the considerations of fair use as written in 17 U.S. Code § 107, fair use evaluates the purpose and character of the use, the nature of the copyrighted work, the amount of the portion used about the copyrighted work as a whole, and the effect of the use open the potential market for or value of the copyrighted work. [14] The logistical makeup of the use is mostly discussed and qualified during the test for substantial similarity. Of these principles, the purpose and effect of the use are most pertinent to the evaluation of a fair use defense. The importance of purpose was well-demonstrated in Campbell v. Acuff-Rose Music, Inc. (1994).

Campbell v. Acuff-Rose Music, Inc. is a case where the Supreme Court affirmed the defendant’s case for fair use through the evaluation of its non-commercial purpose. ​​In Campbell v. Acuff-Rose Music, Inc., the Court held that 2 Live Crew's song "Pretty Woman" constituted a fair use of Roy Orbison's copyrighted song, "Oh Pretty Woman." The Court found that there is no derivative market for a parody song, so it does not harm the original song’s profits. [15] In other words, the Court determined that the purpose of the parody song is not to, in any way, decrease the potential value the song can give to the artist. This decision marks an important precedent where purpose and effect, specifically the distinction between monetary harm and gain for the plaintiff, stand center in a fair use judgment.

Epic Games’ use of the Steps in its emote is completely monetary in purpose, directly earning revenue through unoriginal choreography while giving no share to the original choreographer. Emotes make up a significant portion of the game’s revenue: it adds interest to the over one billion dollars Epic Games has earned from Fortnite. [16] Significantly, because the stolen choreography is always renamed, it is apparent that the company has no interest in giving credit to the original dance or amassing popularity for the original choreographer. Epic Games’ use of the dances does not increase the value of the copyrighted work. Instead, the unlicensed use robs the original choreographer of deserved profit and reputation enhancement from the popularity of their work. Lawyer Elijah Hack wrote in an article advocating for the expansion of copyright law to include protection for simple dance steps such as the “Milly Rock” that “companies like Epic Games face no deterrent for their use of the work of hip-hop artists.” [17] Fundamentally, he argued that the Court should fulfill the 1976 Copyright Act’s call to assess “the purpose and character of the use.” [18] The court’s judgment of Epic Games’ fair use defense is an opportunity to fulfill this legal purpose.

In conclusion, the emote “It’s Complicated” and Hanagami’s choreography are similar enough to support an infringement claim, and suitable cross-discipline case law supports the Ninth Circuit’s decision to reverse the lower court’s decision against Hanagami. Moreover, Epic Games should be held liable because its use of the Steps is pecuniary, and the artistic appeal in Hanagami’s choreography has helped them amass profit through players’ purchasing of the emote. Legal precedent has allowed musicians to assume their music will be cleared and paid for commercial use, and choreographers deserve the same protections as other authors of art. Creators of dance should not be deterred from pursuing litigation due to the lack of legal precedents. If current courts rule in favor of choreographers when they bring forth legitimate infringement claims, choreography will be able to develop a more robust case law to supplement existing copyright statutes, extending more equal protection to professionals in the field of dance. [1] 

Edited by Ashley Zhou

[1] “17 U.S. Code § 107 - Limitations on Exclusive Rights: Fair Use,” Legal Information Institute, accessed April 3, 2024, https://www.law.cornell.edu/uscode/text/17/107. ; 1. “Substantial Similarity in Copyright,” DLA Piper, accessed April 3, 2024, https://www.dlapiper.com/en-us/insights/publications/intellectual-property-and-technology-news/2022/ipt-news-q4-2020/substantial-similarity-in-copyright.

[2] Anthea Kraut, Choreographing Copyright: Race, Gender, and Intellectual Property Rights in American Dance (Oxford: Oxford University Press, Incorporated, 2015), 282.

[3] Elijah Hack, “Milly Rocking through Copyright Law: Why the Law Should Expand to Recognize Dance Moves as a Protected Category,” University of Cincinnati Law Review 88, no. 2 (2020): 637-651.

[4] Choreography and pantomime, accessed April 3, 2024, https://www.copyright.gov/circs/circ52.pdf.

[5] “Substantial Similarity in Copyright,” DLA Piper.

[6] Rentmeester v. Nike, Inc., No. 15-35509 (9th Cir. 2018)

https://law.justia.com/cases/federal/appellate-courts/ca9/15-35509/15-35509-2018-02-27.html

[7] Rentmeester v. Nike, Inc. (2018)

[8] “Hanagami V. Epic Games Inc. | Loeb & Loeb LLP,” August 24, 2022, https://www.loeb.com/en/insights/publications/2022/09/hanagami-v-epic-games-inc.

[9] Horgan v. MacMillan, Inc., 621 F. Supp. 1169 (S.D.N.Y. 1985)

https://law.justia.com/cases/federal/district-courts/FSupp/621/1169/1368629/

[10] Horgan v. MacMillan Inc., 789 F.2d 157 (2nd Cir. 1986)

[11] Kyla Hanagami v. Epic Games, Inc., Appeal from the United States District Court for the Central District of California, Filed November 1, 2023.

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/11/01/22-55890.pdf.

[12] Swirsky v. Carey, 226 F. Supp. 2d 1224 (C.D. Cal. 2002)

[13] Swirsky v. Carey, 226 F. Supp. 2d 1224 (C.D. Cal. 2002)

[14] “17 U.S. Code § 107 - Limitations on Exclusive Rights: Fair Use,” Legal Information Institute

[15] "Campbell v. Acuff-Rose Music, Inc." Oyez, Accessed April 3, 2024, https://www.oyez.org/cases/1993/92-1292.

[16] Alex Avakiantz, “Stealing Swagger: NFL End Zone Celebrations and Fortnite’s Fortune,” Washington Law Review 94, no. 1 (2019): 453+. Gale General OneFile (accessed April 3, 2024), https://link-gale-com.ezproxy.cul.columbia.edu/apps/doc/A587876266/ITOF?u=columbiau&sid=summon&xid=fd895785.

[17] Hack, “Milly Rocking through Copyright Law.”