A federal district court judge in the Central District of California recently dismissed a choreographer’s claims against Epic Games Inc. (“Epic Games”) arising out of Epic Games’ alleged use of his dance moves in its Fortnite video game. See Kyle Hanagami v. Epic Games Inc., No. 22-cv-02063-SVW-MRW (C.D. Cal. Aug. 24, 2022) (Dkt. 45) (“the Order”).

As the Order explains, Fortnite features a virtual reality world where players can choose an avatar to represent them as they explore, build, and destroy structures, and battle each other in player-to-player combat. Fortnite players can customize their avatars by utilizing a variety of features, including “emotes,” which are dances that avatars perform while attending concerts or to celebrate a victory in a battle royale game, among other things. Choreographer Kyle Hanagami brought copyright infringement and unfair competition claims against Epic Games based on his allegations that one of Fortnite‘s nearly 500emotes incorporated a handful of dance moves from a five-minute routine he posted to YouTube in 2017 and obtained a copyright for in 2021.

A plaintiff asserting a copyright infringement claim must sufficiently allege (1) ownership of a valid copyright; (2) copying of original constituent elements of a work; and (3) unlawful appropriation. Unlawful appropriation occurs where the works are “substantially similar” in their protectable elements. In the Ninth Circuit, courts compare a work’s extrinsic components to determine whether the works are substantially similar as a matter of law. Before a court engages in this analysis, however, it must “filter out” the unprotectable elements of the plaintiff’s work, e.g., the stock or standard features commonly associated with the type of work at issue or that are in the public domain. The court then compares the remaining, protectable elements to the corresponding elements of the defendant’s work “to assess similarities in the objective details of the works.”

Epic Games moved to dismiss each of Hanagami’s claims under Federal Rule of Civil Procedure 12(b)(6), arguing that his copyright claims failed as a matter of law because the works on the whole were not substantially similar and the dance moves at issue were not protectable. Epic Games also moved to dismiss Hanagami’s state-law unfair competition claim on preemption grounds.

The Court agreed with Epic Games. It analogized Hanagami’s dance steps to Michael Jordan’s “grand jeté” pose featured in a photograph, which the Ninth Circuit held was not protectable in its own right apart from the photograph’s other creative elements (i.e., camera angle, timing, and shutter speed). Order at 4–5 (citing Rentmeester v. Nike, Inc., 883 F. 3d 1111, 1119 (9th Cir. 2018). Like the pose at issue in Rentmeester, Hanagami’s dance steps are individual poses that, together, constitute mere “building blocks for a choreographer’s expression” and thus are not protectable on their own. Order at 5.

As the Court noted, this is consistent with the U.S. Copyright Office’s recognition of a “continuum between copyrightable choreography and uncopyrightable dance,” where “[s]ocial dance steps and simple routines are not copyrightable.” Just as the “Floss” dance, the “Carlton,” and other “simple routines” are not copyrightable on their own, Hanagami’s dance steps are likewise not copyrightable, particularly “when viewed out of the context of the whole of Plaintiff’s work.” Order at 6–7. Instead, his dance steps are potentially protectable only when combined with the other elements that make up his copyrighted work. Thus, the Court held the dance steps were not entitled to copyright protection.

Thus the Court examined the similarities between the works as a whole and found that they are not substantially similar. Whereas Hanagami’s video features human performers in a dance studio in the physical world performing for a YouTube audience, Epic Games’ work features animated characters performing for an in-game audience in a virtual world.

The Court also dismissed Hanagami’s state-law unfair competition claim on preemption grounds, finding it was “part and parcel of the copyright claim.” In so holding, the Court rejected Hanagami’s argument that his claim could survive preemption because it added the allegation that Epic Games’ use of the dance moves gave the “false impression” that he endorsed Fortnite. In essence, the claim was still a copyright infringement claim.

This decision is the latest in a series of cases asserting infringement based on dance moves used in Fortnite emotes. But while several other cases were dismissed for lack of registration before reaching the merits, the claims in Hanagami did involve a registered copyrighted work, which allowed the Court to go a step further and dismiss Hanagami’s claims after engaging in substantive infringement analysis. Accordingly, the Hanagami decision confirms that courts can dismiss copyright claims at the pleading stage on the grounds that the works are not substantially similar as a matter of law. The decision further confirms the difficulties parties will face in seeking copyright protection for specific dance moves.

Photo of Lee S. Brenner Lee S. Brenner

Lee Brenner, chair of Venable’s Entertainment and Media Litigation Group, is a trial attorney and business litigator. With numerous published decisions throughout his career, Lee has deep experience in the media and entertainment industry, particularly in the areas of defamation, copyright law, idea…

Lee Brenner, chair of Venable’s Entertainment and Media Litigation Group, is a trial attorney and business litigator. With numerous published decisions throughout his career, Lee has deep experience in the media and entertainment industry, particularly in the areas of defamation, copyright law, idea theft, credit disputes, privacy, intellectual property, and right of publicity. A recognized leader among his peers, Lee is also co-editor of Communications Lawyer, the American Bar Association’s publication on media and First Amendment law.

Lee’s legal achievements have been recognized by numerous leading industry associations and publications. He was named a Leader in Law nominee by the Los Angeles Business Journal; an Intellectual Property Trailblazer by the National Law Journal; and a Local Litigation Star by Benchmark Litigation. Lee has also been listed in Chambers USA, in The Best Lawyers in America, as a Top Intellectual Property Lawyer in the Daily Journal, and as 2020’s Entertainment Lawyer of the Year by the Century City Bar Association.