'Brazen infringement': Epic's being sued over a Fortnite dance again, and the odds do not appear to be in its favor this time

sign of a person dancing with a big "do not do this" slash over it

(Image credit: Epic Games)

It's happening again: Epic Games is facing a fresh lawsuit over Fortnite's "Touching the Sky" emote, which choreographer Felix Burgos says is being used in the game without his permission.

Burgos' Touching the Sky choreography was first featured in Rauw Alejandro's Touching the Sky video, posted to YouTube on May 23, 2024. It appeared in Fortnite as an Icon Series emote in February 2025, and as you can see in this video created and shared by Burgos' lawyer, yeah, they're pretty similar, alright.

Touching The Sky - Fortnite Emote v. Burgos Registered Choreography - YouTube

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"Epic's brazen infringement of the Registered Choreography is undeniable," the suit states.

Epic faced a spate of lawsuits over Fortnite emotes back in 2018 and 2019, many of which ultimately fell short due to legal technicalities. But this action says those lawsuits did have some knock-on effects: They "alerted the public at large of the existence of copyright protection for choreography, which led choreographers like Burgos to register" their work, and they pressured Epic into properly licensing choreography from "some" artists. But not all.

"Epic typically approaches young and/or less sophisticated artists, like those who are catapulted to fame on social media platforms like TikTok, about licensing choreography for pennies on the dollar," the suit states. "Burgos, a sophisticated businessman and established choreographer who is aware of the value of his choreography generally and the Registered Choreography specifically, was never approached by Epic about a license."

If that sounds oddly familiar, you might be thinking of the lawsuit filed against Epic in 2022 over the It's Complicated emote in Fortnite, which made almost identical claims about Epic's approach to licensing. That lawsuit was dismissed a few months later, as the judge in the case ruled that a few seconds of dance moves was not sufficient for copyright protection.

It was a big win for Epic and seemed to signal the end of this sort of lawsuit, except—surprise twist!—the Ninth Circuit overturned the decision in November 2023, ruling that the district courted erred in dismissing the claim and ordering the case be remanded "for further proceedings consistent with this opinion." Faced with that, Epic reached a settlement with It's Complicated creator Kyle Hanagami in February 2024.

That outcome is presumably what opened the door to this case, and in fact the lawyer representing Burgos, David Hecht, is also the lawyer who represented Hanagami. Given the many similarities between the cases, it doesn't seem like Epic is in an especially strong position here—and that could point to more of these lawsuits (or maybe more care from Epic in how it licenses these choreographies) coming in the future.

I've reached out to Hecht and Epic for more information and will update if I receive a reply.

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Andy has been gaming on PCs from the very beginning, starting as a youngster with text adventures and primitive action games on a cassette-based TRS80. From there he graduated to the glory days of Sierra Online adventures and Microprose sims, ran a local BBS, learned how to build PCs, and developed a longstanding love of RPGs, immersive sims, and shooters. He began writing videogame news in 2007 for The Escapist and somehow managed to avoid getting fired until 2014, when he joined the storied ranks of PC Gamer. He covers all aspects of the industry, from new game announcements and patch notes to legal disputes, Twitch beefs, esports, and Henry Cavill. Lots of Henry Cavill.

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