A comparison of Kyle Hanagami’s copyrighted choreography, left, with the game Fortnite’s ‘It’s Complicated’ Emote, right (photograph), in Hillel Aron, Ninth Circuit revives choreographer’s lawsuit against Epic Games over Fortnite ‘emote’, Courthouse News Serv. (Nov. 1, 2023), https://www.courthousenews.com/ninth-circuit-revives-choreographers-lawsuit-against-epic-games-over-fortnite-emote/.
Authored by Sophia G. Brough
Choreography is a protectable form of intellectual property; however, proving copyright infringement of choreographic works is becoming more difficult due to the increasingly shortened “performances” in mediums such as social media and online video game platforms.[1] Under the Copyright Act, “pantomimes and choreographic works” that are created after January 1, 1978 and fixed in a tangible medium of expression are protected by federal copyright.[2] Because the recognition of dance in general as a copyrightable work is fairly new, however, choreography copyright is a “largely undefined area of law.” [3] In recent years, Epic Games Inc. (“Epic”) has been subject to a slew of lawsuits accusing the company of stealing creators’ dance moves to make emotes—the game’s term for virtual avatar animations—for players to purchase and use in their popular online game Fortnite.[4] Earlier parties were forced to drop their suits because the U.S. Copyright Office denied registration due to lack of sufficient creative expression, or the judge dismissed most of their claims.[5] However, professional choreographer Kyle Hanagami was able to register a copyright for his choreographic work prior to initiating his suit.[6] Thus, the Ninth Circuit took the opportunity to address the extent of federal copyright protection for choreographic works in Hanagami v. Epic Games, Inc.[7]
The facts of the case resemble those of similar copyright lawsuits filed against Epic.[8] In 2017, Hanagami published a five-minute dance routine video on YouTube, which contained “about 480 counts of choreography, consisting of ninety-six counts repeated by five different groups of dancers.”[9] Around four years later, Epic launched a new emote—ironically named “It’s Complicated”—with their latest season of Fortnite.[10] Hanagami sued for direct and contributory copyright infringement; he claimed that the sixteen-count emote was comprised of the “most recognizable portion” of the choreography that he created and posted in the video, and therefore it infringed his Registered Choreography.[11] Epic moved to dismiss Hanagami’s suit on the grounds of failure to state a copyright claim, arguing that the dance movements allegedly copied by their emote were unprotectable and that the works were not substantially similar.[12] The district court granted Epic’s motion, finding that choreography “is composed of ‘a number of individual poses’ that are not protectable ‘when viewed in isolation.’”[13] While Hanagami maintained that Epic copied the most identifiable portion of his choreography, the district court found that those dance movements, which it referred to as “the Steps,”[14] were unprotectable because they were merely a “small component” of Hanagami’s choreography, and that he was only entitled to copyright protection in the five-minute work as a whole and not individual parts.[15] The district court further reasoned that there were no similar creative elements between Hanagami’s work and Epic’s emote aside from the “unprotected poses,” and concluded that there was no substantial similarity between the two as a matter of law.[16] Hanagami then appealed to the Ninth Circuit, which disagreed with the lower court’s application of the substantial similarity test, holding that Hanagami plausibly alleged the substantial similarity between his choreography and the emote.[17]
The Ninth Circuit began its opinion by reflecting on the history of copyright protection for choreographic works—specifically on how the 1909 Act afforded minute protection to choreographic works. [18] While the 1976 Act codifying “choreographic works” as an individual work of authorship significantly broadened its protection, the court noted that neither the Act nor Congress defined the meaning of the term choreography, and federal courts rarely addressed the matter.[19] Therefore, the court adopted the Compendium of U.S. Copyright Office Practices’ definitions of “choreography” and “dance,” noting that while the Compendium is not binding authority, it defers to the Copyright Office “when its interpretation of a term has the ‘power to persuade.’”[20] The Compendium defines choreography as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.”[21] However, the court also recognized that individual elements of a dance are not copyrightable.[22] Within this context, the court addressed the main issue on appeal: whether the district court correctly applied the “extrinsic test” for assessing substantial similarity.[23]
Unlike many plaintiffs before him, Hanagami owned a valid copyright.[24] As a result, he only had to prove that Epic copied protected elements of his work by plausibly alleging “both (1) copying and (2) unlawful appropriation.”[25] The court clarified that while copying requires the plaintiff to show that the defendant had access to the plaintiff’s work and that the “two works share similarities probative of copying,” unlawful appropriation requires the plaintiff to demonstrate that the works are substantially similar.[26] Since it was undisputed that Hanagami plausibly alleged the “copying” prong, the Ninth Circuit applied its two-part “extrinsic test” to determine unlawful appropriation, which assesses the two work’s objective similarities while solely focusing on “the protectable elements of the plaintiff’s expression.”[27] The court had several qualms with the district court’s application of the test in this case.
First, the court was persuaded by Hanagami’s argument that reducing choreography to a collection of individual “poses” is contrary to how courts analyze other copyrightable works, such as music and photography.[28] Since it is often difficult to break down the protected and unprotected elements of nonverbal works like choreography, the Ninth Circuit uses a “selection and arrangement” approach when evaluating substantial similarity, which protects the “particular way in which the artistic elements form a coherent pattern, synthesis, or design.”[29] Therefore, although individual dance movements are generally unprotected, the original “selection, coordination, and arrangement” of the movements may be protectable.[30] While the court cautions that these types of elements may not be present in every choreographic work, it found that choreography may contain several types of expressive elements beyond poses.[31] Therefore, Hanagami met his burden by plausibly alleging that his creative decisions to select and arrange the choreographic elements were substantially similar to Epic’s in the creation of their emote.[32]
Second, the court rejected the district court’s classification of the “Steps” allegedly copied by Epic’s emote as a “short” and “small component” of Hanagami’s five-minute choreography, thereby rendering it unprotectable.[33] The Ninth Circuit hearkened back to their music copyright analogy and reasoned that although a single music note is unprotected, a “limited arrangement of notes” can be protected.[34] The panel stressed that the “proper inquiry does not turn on the mere length of the copied material” but rather on the significance of the copied portion.[35] The four counts allegedly copied in Epic’s emote were repeated eight times throughout Hanagami’s choreography, and notably during the “chorus and titular lyrics” of the song attendant to the performance.[36] Therefore, Hanagami plausibly alleged that the four-count portion was substantially significant to his choreography as a whole, and therefore, the copying of it would not be considered de minimis.[37]
Furthermore, the Ninth Circuit also rejected the district court’s categorization of the four-count segment as a “simple routine,” asserting that shortness does not automatically translate to simplicity.[38] The Copyright Office does not register copyright for simple routines;[39] however, the court held that Hanagami met his burden by plausibly alleging that the four-count segment was a “complex, fast-paced series of patterns and movements” and observed that the segment alone could satisfy many of the Compendium’s requisite elements for a choreographic work.[40] However, the court emphasized that the question of whether the four-count portion itself could be registered with the Copyright Office is immaterial; the relevant question is “whether Epic unlawfully appropriated that portion from Hanagami’s Registered Choreography,” and the court found that Hanagami plausibly alleged that it did.[41]
The Ninth Circuit’s decision emphasizes the fact that copyright litigation involving choreography and similar works remains a fact-based and “context-driven” area of law.[42] While it would have been interesting to see how the district court responded to the Ninth Circuit’s analysis on remand, Epic and Hanagami agreed to dismiss the lawsuit with prejudice for reasons currently undisclosed to the public.[43] Therefore, since this analysis took place during the pleadings stage, it is unclear whether Hanagami would have met his burden at trial.[44] Hanagami’s lead attorney, David Hect, stated that the Ninth Circuit’s holding “is extremely impactful for the rights of choreographers and other creatives in the age of short-form digital media.”[45] Intellectual property experts have dubbed this decision a “very good development for choreographers,” and also as the courts’ “growing pains” in their quest to determine what is or isn’t protectable in choreographic works.[46] This decision provides useful guidance on the extent of protection available to choreographic works, specifically for cases in which only a part of the registered work is allegedly infringed—a highly relevant topic in light of TikTok and other mediums that rapid-fire creative content to consumers.[47] Thus, Mr. Hect’s statement rings true for the future of creator advocacy in this complex and rapidly expanding digital era.
[1]See generally Stephen Wolfson, Is that TikTok dance meme copyrighted? It’s complicated. . . ., Penn Librs. (Nov. 29, 2023), https://www.library.upenn.edu/news/dance-and-copyright.
[2]17 U.S.C. § 102(a)(4); see also U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 805 (3d ed. 2021).
[3]Hanagami v. Epic Games, Inc., 85 F.4th 931, 935 (9th Cir. 2023).
[4]See Complaint, Alfonso Ribeiro v. Epic Games, Inc., No. 2:18-cv-10412 (C.D. Cal. filed Dec. 17, 2018) (alleging copyright infringement over unauthorized use of plaintiff’s popular signature dance from Fresh Prince of Bel-Air in the form of a Fortnite emote); Complaint, Anita Redd v. Epic Games, Inc., No. 2:18-cv-10444 (C.D. Cal. filed Dec 17, 2018) (alleging copyright infringement over unauthorized misappropriation of plaintiff’s popular signature dance, the “Floss” in a Fortnite emote); Complaint, Terrence Ferguson v. Epic Games Inc., No. 2:18-cv-10110 (C.D. Cal. filed Dec. 05, 2018) (alleging copyright infringement for unauthorized misappropriation of plaintiff’s creative expression, the “Milly Rock,” in a Fortnite emote); Amended Complaint, Baker v. Epic Games, Inc., No. 2:19-cv-00505 (C.D. Cal. filed Feb. 21, 2019) (alleging that Epic Games exploited plaintiff’s signature movement called the “Shoot” in a Fortnite emote).
[5]Kyle Jahner, Revived Fortnight Dance Suit Explores Rare Use of Copyright Law, Bloomberg L. (Nov. 13, 2023, 4:01 AM CST).
[6]Hanagami, 85 F.4th at 937.
[7]Id. at 935.
[8]Id. at 936-37.
[9]Id. at 936; see Kyle Hanagami, CHARLIE PUTH – How Long | Kyle Hanagami Choreography, YouTube (Nov. 11, 2017), https://www.youtube.com/watch?v=iW2yUrXXRTI.
[10]Hanagami, 85 F.4th at 937; see Insane broz, It’s Complicated Emote | Fortnite Battle Royale, YouTube (Apr. 1, 2021), https://www.youtube.com/watch?v=ye8BYIzPxgQ.
[11]Hanagami, 85 F.4th at 937 (stating that the only claims mentioned in the opinion were the claims relevant to the appeal, and therefore did not address the unfair competition claim).
[12]Id.
[13]Id.
[14]Hanagami v. Epic Games Inc.,No. 2:22-cv-02063-SVW-MRW, 2022 WL 4007874, at *1 (C.D. Cal. Aug. 24, 2022), rev’d and remanded, 85 F.4th 931 (9th Cir. 2023).
[15]Hanagami, 85 F.4th at 937-38 (“[T]he [district] court reasoned that there exists a “continuum between copyrightable choreography and uncopyrightable dance.”).
[16]Id. at 938.
[17]Id. at 936.
[18] Hanagami, 85 F.4th at 938 (“Over the years, there were numerous proposals to amend the 1909 Act to provide broader protections for choreography, but none were successful. . . . when [Congress] enacted the 1976 Act, it codified ‘choreographic works’ as one of the ‘original works of authorship’ subject to copyright protection.”).
[19]Id. at 939 (citing Bikram’s Yoga Coll. of India, L.P v. Evolation Yoga, LLC, 803 F.3d 1032, 1043 (9th Cir. 2015) (“[E]xplicit federal copyright protection for choreography is a fairly recent development, and the scope of that protection is an uncharted area of the law.”)).
[20]Hanagami, 85 F.4th at 940 & n.10.
[21]Compendium (Third) § 805.1 (citations omitted).
[22]Hanagami, 85 F.4th at 940.
[23]Id. at 940-941.
[24]Id. at 941.
[25]Id. at 941 (citing Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
[26]Hanagami, 85 F.4th at 941.
[27]Id.
[28]Id. at 944 (“To analogize from music to dance, reducing choreography to poses’ would be akin to reducing music to just ‘notes.’”). Compare Metcalf v. Bocho, 294 F.3d 1069, 1074 (9th Cir. 2002) (explaining that while individual music notes are not protected, their arrangement may be) with Rentmeester, 883 F.3d at 1120 (explaining that individual elements of a photograph are not protected, but their combined selection and arrangement may be).
[29]Hanagami, 85 F.4th at 942 (quoting Skidmore v. Zeppelin, 952 F.3d 1051, 1074 (9th Cir. 2020)).
[30]Id. at 943 (clarifying that while there is no bright-line rule for when the similarity in selection and arrangement is considered “substantial,” the court generally requires it to be similar enough that an ordinary observer would overlook the disparities unless he set out to detect them).
[31]Id.
[32]Id. at 945.
[33]Id.
[34]Id. (quoting Swirsky v. Carey, 376 F.3d 841, 851 (9th Cir. 2004).
[35]Id. at 946 (stating that a defendant cannot escape liability merely because the copied material is short).
[36]Id.
[37]Id. (“[C]opying that is de minimis is not actionable.”).
[38]Id.
[39]Compendium (Third) § 805.5(B) (“The legislative history specifically states that ‘choreographic works do not include social dance steps and simple routines.’”).
[40]Hanagami, 85 F.4th at 947. See Compendium (Third) § 805.2(A)-(F).
[41]Hanagami, 85 F.4th at 936, 947-48 (declining to address the thin versus broad copyright protection issue).
[42]Id. at 943 (citing Rentmeester, 883 F.3d at 1121).
[43]See Blake Brittain, Epic Games resolves ‘Fortnite’ dance moves copyright lawsuit, Reuters (Feb. 13, 2024, 12:27 PM CST), https://www.reuters.com/legal/litigation/epic-games-resolves-fortnite-dance-moves-copyright-lawsuit-2024-02-13/.
[44]Id. at 947 (“[I]t is not up to us at this stage of the litigation to determine the complexity of the Steps. Further discovery and expert testimony may shed more light on this question.”).
[45]Wes Davis, The copyright fight over Fortnite dance moves is back on, The Verge (Nov. 4, 2023, 3:31 PM CDT), https://www.theverge.com/2023/11/4/23946260/epic-fortnite-choreography-emote-lawsuit-ruling-overturned.
[46]Jahner, supra note 5.
[47]See Lindsay Korotkin and Helenka Mietka, Hey! That’s My Move! Ninth Circuit Remands Choreography Copyright Fortnite Case, ArentFox Schiff (Dec. 27, 2023), https://www.jdsupra.com/legalnews/hey-that-s-my-move-ninth-circuit-7545655/; Wolfson, supra note 1.
American Journal of Trial Advocacy 