Fortnite-maker Epic Games wins dismissal of copyright claims brought by professional dancer and choreographer after district court concludes that his two-second series of dance steps, replicated as virtual dance for purchase in Fortnite, was not protectable under copyright law.
Plaintiff, professional dancer and choreographer Kyle Hanagami, brought suit against Epic Games Inc., asserting that the video game developer and distributor copied a portion of plaintiff’s copyrighted dance moves in the popular game Fortnite. Hanagami published a five-minute video on YouTube in 2017 featuring himself and others dancing to the song “How Long” by Charlie Puth; in 2021, he registered the “How Long” choreography with the U.S. Copyright Office. Fortnite, a free-to-play multiplayer game taking place in a virtual world, allows players to purchase virtual items—including “emotes,” or animated movements and dances that Fortnite characters can perform—through an in-game marketplace. Claiming that Epic Games’ “It’s Complicated” emote copied a portion of his “How High” choreography—specifically, the two-second, four-beat sequence during the hook at the beginning of the chorus, a sequence Hanagami referred to as the “steps”—Hanagami asserted claims for direct and contributory copyright infringement and unfair competition. Epic Games moved to dismiss the claims.
In evaluating Epic Games’ motion to dismiss, the court focused its analysis on whether the two works are substantially similar, noting that the test for substantial similarity contains two components: an extrinsic test and an intrinsic test. While the intrinsic test looks to “an ordinary person’s subjective impressions of the similarities between the two works,” the extrinsic test compares “specific criteria, which can be listed and analyzed” to determine whether the works are substantially similar and can be decided by the court as a matter of law. Before applying the extrinsic test, a court must filter out a work’s unprotectable elements so it can determine only whether the protectable elements of a work are substantially similar to another work.
Much of the district court’s discussion focused on this process of filtering out the unprotectable elements of Hanagami’s steps and how the process should be applied to choreography. The court found an analogy in photography and the Ninth Circuit’s 2018 decision in Rentmeester v. Nike, Inc., which explained that though “photos can be broken down into objective elements that reflect the various creative choices the photographer made in composing the image—choices related to subject matter, pose, lighting, camera angle, depth of field, and the like, … none of those elements is subject to copyright protection when viewed in isolation.” Finding this similar to choreography, defined as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole,” the district court concluded that choreographic works are composed of individual poses that, when viewed in isolation, are not protectable under copyright law.
Epic Games argued that not only are the individual poses contained in Hanagami’s steps not protectable, but the entirety of the two-second combination of poses comprising the steps is equally unprotectable. To support this argument, Epic Games pointed to guidance from the Copyright Office, which has stated that “[s]ocial dance steps and simple routines are not copyrightable. … Thus, for example, the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable.” The Copyright Office also rejected attempts to register popular dance moves known as the “Floss” and the “Carlton,” finding them to be simple routines. The court also found support for this position in the legislative history of the Copyright Act, where it was stated that “choreographic works do not include social dance steps and simple routines.” While acknowledging that Hanagami’s steps involved more creativity than, for instance, the basic waltz step, the district court ultimately concluded that the steps are closer to a short routine like the “Floss” or the “Carlton” and are therefore unprotectable in isolation; Hanagami was entitled to copyright protection only as to how the steps are expressed within the entirety of his five-minute registered choreography.
With that understanding, the district court compared Hanagami’s registered choreography with Epic Games’ “It’s Complicated” emote and determined that no substantial similarity existed. Other than the steps—which the court found to be identical to the emote but unprotectable on their own—the court found no similarity in other elements of creative expression between the works. Accordingly, the district court dismissed Hanagami’s copyright claims.
The district court then turned to Hanagami’s unfair competition claim, which Epic Games argued was preempted by the Copyright Act. The court applied the Ninth Circuit’s test for preemption, which first asks whether the subject matter of the state law claim falls within the subject matter of copyright law, and second, whether the rights asserted under the state law claim are equivalent to the exclusive rights provided by copyright law. To survive the second part, a copyright holder must demonstrate that its state law claim has an “extra element” that changes the nature of the action.
Hanagami argued that Epic Games’ use of his choreography created a “false impression” that he endorsed Fortnite. In reviewing Hanagami’s complaint, however, the district court determined that Hanagami’s unfair competition claim was based on the alleged copying of his choreography in Epic Games’ “It’s Complicated” emote and was, in essence, a copyright claim. The district court granted Epic Games’ motion to dismiss Hanagami’s unfair competition claim.
Summary prepared by David Grossman and Kyle Petersen