Skip to content
Fortnite, the cult battle royale game from Epic Games, is still hugely popular. Just last November, the game broke its own record when it reached 100 million online players. However, as great as the success of the game and the associated revenue for Epic Games are, the emerging legal problems that the game studio has to contend with are just as extensive and exciting. In March 2023, Fortnite had already come to the legal mainstream once before with the announcement of the record settlement with the US Federal Trade Commission (“FTC”) over practices that the FTC saw as illegal Dark Patterns (see also our article “FTC vs. Epic Games: Illegal Dark Patterns?“).

This time, however, it was not a regulatory but a civil law case. The subject matter was the so-called “emotes, i.e. short dance animations, which can either be purchased or partially earned. As with the dispute over the copyrights to the famous “Floss Dance” or the “Carlton Dance” by Alfonso Ribeiro, the emotes are once again at the centre of legal disputes.

The judgement of the United States Court of Appeals for the Ninth Circuit (D.C. No. 2:22-cv-02063-SVW-MRW) was a unique decision on dance, “one of the oldest forms of human expression, as the judgement states.

I. Facts of the Case and Course of Proceedings to Date

The case at hand concerned a copyright dispute between choreographer Kyle Hanagami and Epic Games Inc. Hanagami is a well-known choreographer with a large social media presence who owns avalidly registered copyright in a five-minute choreographic work. In his lawsuit, Hanagamiclaimed that Epic Games, the developer of the game, had infringed his copyright bycreating and selling an emote that depictedparts of the five-minute work. According to Hanagami, his choreography wasclearly identical and recognisably recreated for Fortnite. In the motion to dismiss, however, Epic Games argued that the allegedly recreated dance moves were not protectable elements of Hanagami’s work and were therefore not substantially similar to the emote.

The lower court, the District Court, still ruled in favour of Epic Games: for a successful copyright infringement claim, the plaintiff must prove that its original work and the allegedly infringing work are “substantially similar”. Thecore of the case is therefore the question of when exactly a substantial similarity exists in the case of choreographic works. Hanagami had not been able to plausibly demonstrate this.

The district court came to the conclusion that a choreography consisting of a series of individual poses is not protectable on its own.Consequently, if one compares the entirety of Hanagami’s registered choreography with Epic Games’ emote, no substantial similarity can be recognised.

However, the Federal Court of Appeal disagreed.

II. Judgement of the Federal Court of Appeal

The 9th Circuit Court of Appeals hasnow overturnedthe decision of the District Court. The Court of Appeal found that choreographies, like other forms of copyrightable material, consisted of various elements thatwere not protectable in isolation. However, the selection and arrangement of these elements by thechoreographerwas eligible for protection. The court stated that poses arenot the only relevant element in a choreography. This could also include body position, form, actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast and repetition.

The Court of Appeal concluded that Hanagami hadmade a plausible showing that the creative choices he made in selecting and arranging the elements of the choreography were substantially similar to the choices Epic Games made in creating the emote. Therefore, the case was remanded for further proceedings consistent with this opinion. The court did not address the question of whether Hanagami’s work enjoyedbroad or onlythin copyright protection, but left that decision for further proceedings.

III. Copyright Protection of Choreographies under German law?

1. Choreography as a Protected Work

A choreography also enjoys copyright protection under German law if it is a protected work within the meaning of Section 2 of the German Copyright Act (UrhG). A look at the standard shows that the German legislator also assumes that choreographies can be protected in principle. Section 2 para. 1 no. 3 UrhG also lists“works of dance art” as a sub-form of pantomime works as a protected form. The protectable character of choreographies as dance defined by fixed signs and movements lies in the fact that dance as body language expresses the thoughts and feelings of the choreographer and the dancers. The message that is to be conveyed through the sequence of movements is therefore important. Therefore, a single movement is often not sufficient to be protected as dance, which in turn does not mean that only the dance as a whole is worthy of protection. Individual sections of the dance can also be protectable.

The section of Hanagami’s choreography in dispute comprises several unique movement sequences and lasts for four bars of the accompanying music. In particular, the combination of the individual dance steps testifies to an expression of the choreographer’s thoughts and feelings. It can therefore be assumed with good reason that copyright protection for the movements would also exist under German law.

2. Choreography in Fortnite as Unauthorised Exploitation

The reproduction of the section of the choreography in Fortnite is likely to infringe upon German copyright law. According to Sections 15 et seq. UrhG, the author of a work is entitled to comprehensive exploitation rights to his work, which protect the author’s economic interests.

By reproducing the exact dance steps in Fortnite and offering the dance for sale to players, an infringement of Hanagami’s reproduction right under Section 16 para. 1 UrhG comes into consideration. The reproduction right is conceived as a prohibitory right, meaning that if one wishes to reproduce another person’s work, a reproduction right must be obtained from the rights holder.

Since the concept of reproduction is understood very broadly, it is sufficient for a work to be physically fixed in such a way that it can be directly or indirectly perceived by the human senses in some way. In the case at hand, the dance section was digitized and stored at least temporarily on the player’s computer for retrieval upon updating the game.

Note: It has not yet been conclusively decided whether reproduction occurs in cases where the game or the individual content is stored on the server and is only streamed via the game client. It is predominantly assumed that reproduction takes place at least through temporary storage in RAM.

Epic Games has reproduced the dance segment without granting Hanagami any rights, so that it can be viewed, downloaded and used by players. It is therefore highly likely that Hanagami could have successfully challenged the copyright infringement and exercised the rights granted to him under German law. Above all, he would be entitled to injunctive relief and damages.

IV. Conclusion

The Ninth Circuit’s ruling in Hanagami v. Epic Games represents a notable turning point in copyright protection of choreography in the United States. The court recognises that the copyright protection of choreography can extend beyond the mere sequence of dance steps . This decision has far-reaching implications for the gaming industry, particularly for games such as Fortnite, which use dance animations, e.g. in emotes, as a central element. It also serves as a precedent for similar copyright issues and emphasises the need for game developers not to use other people’s works unchecked when using pop culture references, for example. However, lawful use without infringing the rights of the artists or choreographers is possible for works in the public domain or in the case of contractual agreements.

This not only applies to development in the USA, but can also be easily transferred to game development in Germany. The decision of the Federal Court of Appeal also sheds light on an aspect of copyright law that may have been rather neglected in game development.