Gamers who win an intense match of Fortnite like to celebrate, sometimes with a simple hand gesture but often with a short hip-swaying dance to a popular song.
Think break-dancing moves like the worm, in which a person drops to the floor and rolls his body up and down, or the robot, when arms and legs are bent in a machine-like manner. Other dances are even more complicated and based on social-media sensations.
Hundreds of these dances, known as emotes, have been released on Fortnite, where players can buy them for a few dollars each. YouTube is filled with videos ranking the most popular Fortnite emotes, and TikTok creators imitate the dances featured in the game.
But while these popular emotes can be the cherry atop a hard-fought victory, they can be hard to swallow for real-life dancers and choreographers.
Epic Games, the studio that makes Fortnite, has been sued at least eight times over allegations of copyright infringement. Last month, the choreographer Felix Burgos accused the company of using the dance routine he created for Rauw Alejandro’s “Touching the Sky” music video without his authorization or consent. The Fortnite emote in question is also called “Touching the Sky.”
In the video, Alejandro and others perform a fast-paced routine in which they swerve their heads to the left, dip to the floor with one arm raised and carry out other intricate arm and footwork.
David Hecht, a lawyer who represents Burgos, has filed most of the copyright suits against Epic. “They just don’t seem to care, and they don’t do the proper diligence,” he said. “They don’t do what they’re supposed to do in order to actually clear and license these movements and these choreographies.”
Because Fortnite is a free-to-play game, Epic makes money by selling emotes and character outfits. During a lawsuit against Apple over App Store policies, Epic revealed in court filings that Fortnite generated $5.4 billion in 2018 and $3.7 billion in 2019.
In an interview, Nate Nanzer, Epic’s senior vice president of partnerships, and Emily Levy, a senior director of music, talent and influencer at the company, declined to discuss any of the litigation or how much revenue Epic has earned from Fortnite emotes. (Nanzer later said in a statement that the company had a license for the dance moves in Burgos’s lawsuit. The suit says Burgos was not compensated, an assertion that Hecht repeated in an interview.)
Epic regularly pays creators for the right to use their choreography within Fortnite. Levy said Epic both asked them to create original dances and worked with them to incorporate their existing dances into emotes.
“Sometimes we notice a dance that’s going viral on a platform like TikTok or others,” Nanzer said. “A lot of times it’s something our community’s into, or we have a partner that brings it to our attention. But from there, we’ll look to identify the right partner and get their permission to release the dance inside of Fortnite.”
Dasha, a singer and songwriter, praised her partnership with Epic, saying she agreed immediately when it approached her about using the song “Austin” and an accompanying line dance.
“I’m constantly tagged in videos of younger fans playing the game and dancing along,” she said in a statement.
Others who signed deals with Epic were less sanguine.
Josh Curtis, a dance choreographer and teacher based in Riverside, Calif., said Epic reached out by email in 2021 to ask if it could use one of his dances to create an emote for the song “Vibr8,” by Marshmello. He agreed and was paid $10,000.
If he could do it over again, Curtis said, he would ask for a percentage of sales instead of a lump sum. All of his son’s friends have downloaded the Fortnite dance, which is known as “Maximum Bounce.”
“If you’re going to use it for years and years and years, I should be getting something along with that,” he said. “You took this from me and now you get to blow it up this much, and I’m still down here trying to survive. That’s not cool.”
Epic has employees who help identify the right partners, and agreements can come in the form of licensing deals. “We’re constantly evolving and updating our practices and our approach,” Levy said.
Nanzer and Levy declined to say how much creators are paid for those licensing deals but said the amount could vary.
“We sort of have a conversation with each creator individually,” Nanzer said. “It’s not like there’s a form agreement or something that everybody gets.”
Whether Burgos, the choreographer who sued Epic last month, is successful in court depends on several copyright factors. David Hoppe, a managing partner at Gamma Law, a firm that focuses on media and technology industries, said the idea of comparing choreographic works was “unavoidably subjective.”
He added that even as the courts “have tried to build this sort of objective legal founding analysis that they apply in their evaluation of whether or not a work is infringing,” different courts use different tests.
Alfonso Ribeiro, the actor best known for playing Carlton Banks on the ’90s television sitcom “The Fresh Prince of Bel-Air,” sued Epic in 2018, accusing it of stealing his character’s signature dance. (The similar Fortnite emote is called “Fresh.”)
He withdrew the case before the U.S. Copyright Office could determine whether the Carlton Dance, in which Ribeiro flamboyantly swings his hips and arms, was eligible for copyright protection. The next year, the office determined it was ineligible because it was not complex enough. But in 2024, after Ribeiro had appealed the decision, it was successfully registered.
In another case, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the choreographer Kyle Hanagami.
The court wrote in 2023 that the “creative choices he made in selecting and arranging elements of the choreography — the movement of the limbs, movement of the hands and fingers, head and shoulder movement and tempo — were substantially similar to the choices Epic made in creating the emote.”
Stephen McArthur, a lawyer who specializes in the intersection of law and video games, said in a statement that the Hanagami case “completely changed the landscape of how copyright law covers choreography.” The Burgos case, he said, was copying those fruitful arguments.
“They are following the same successful blueprint,” he said.
Derrick Bryson Taylor is a Times reporter covering breaking news in culture and the arts.
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