Unauthorized use of choreographies in video games and social networks

By Rafael Rodríguez-Muriel, Member at Ferraiuoli LLC's Intellectual Property practice

This article was originally published in Spanish in Microjuris. 

Fortnite, one of the most popular video games in the world, allows its players to download choreographies for their avatars through in-game purchases. One of the downloadable dances is substantially similar to the choreography used in the music video of How Long, a 2017 song recorded and produced by American singer-songwriter Charlie Puth.

The choreography for said music video was created by Los Angeles-based choreographer and creative director Kyle Hanagami, who is also the copyright holder of said choreography, which is duly registered at the United States Copyright Office. Upon becoming aware of the presence of a substantially similar choreography in Fortnite, Mr. Hanagami brought a copyright infringement lawsuit against the developer of the video game, Epic Games, Inc., in the United States California Central District Court.

On previous occasions, plaintiffs have not been successful when claiming the unauthorized use of a choreography. For example, a few years ago actor Alfonso Ribeiro, best known for his character Carlton Banks on The Fresh Prince of Bel-Air sitcom, unsuccessfully tried to prevent Epic Games from including in Fortnite The Carlton Dance, a move that Mr. Ribeiro made famous during the TV series when his character listened to the song It's Not Unusual by Tom Jones.

However, Mr. Ribeiro did not have a copyright record on his dance and withdraw the action against Epic Games.

Mr. Hanagami does own the copyright of his choreography and therefore perhaps has a better chance of preventing the unauthorized use of it. In any case, Kyle Hanagami v. Epic Games Inc. has the potential to establish how far video game and social media companies can benefit from dances or choreographies that go viral.