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November 3, 2023

Hanagami v. Epic Games: The Ninth Circuit Clarifies The Standard for Infringement of Choreographic Works

Advisory

When celebrity choreographer Kyle Hanagami released what would become a wildly popular YouTube video of dancers performing an original routine set to the Charlie Puth hit “How Long,” he likely failed to anticipate that the video would leave him in locked litigation with the creators of Fortnite — a video game largely known for hosting large-scale virtual concerts at the height of the COVID-19 pandemic — more than five years later. Over the course of his career, Hanagami has created dance routines for pop music luminaries as diverse as Jennifer Lopez, NSYNC, and Justin Bieber; among his many works is the “How Long” dance which he released in November of 2017 and is set to the song of the same name by American singer and pianist Charlie Puth. In the years since, Hanagami’s routine has accrued tens of millions of views on YouTube and inspired numerous imitators of the video’s dance moves. Hanagami also registered his copyright in the choreographic work with the U.S. Copyright Office. Curiously, one of the highest-profile imitations arose in the context of a video game.

In July of 2017, Epic Games (Epic) released the video game Fortnite, an online battle royale and world-building game that allows players to battle one another, collaboratively save the world from zombies, and, critically, show off their dance moves. One of Fortnite’s gameplay features is the “emote,” which is an animated move that players’ avatars can perform, usually to celebrate a victory or at a concert. Emotes are purchased in the game for the equivalent of about $2.00 to $8.00, using Fortnite’s in-game currency. In August of 2020, Epic released a Fortnite expansion pack that included, among other updates, a new emote called “It’s Complicated.” As fans soon noticed, the It’s Complicated emote bore a striking resemblance to Hanagami’s “How Long” choreography, specifically a series of four beats and eight movements that are repeated several times through the dance. Upon the emote’s release, Fortnite players could buy it for the equivalent of $5.00.

Hanagami Brings Suit, and the Court Grants Epic’s Motion To Dismiss

On March 29, 2022, Hanagami sued Epic, alleging in relevant part that the It’s Complicated dance emote infringed his copyright. Epic promptly moved to dismiss the case, arguing chiefly that, as a matter of law, Hanagami’s registered work lacked “substantial similarity” to Epic’s emote because the allegedly copied dance steps were not protectable elements of Hanagami’s work, and thus could not be substantially similar to Epic’s emote. In August 2022, the district court granted Epic’s motion to dismiss.

In dismissing the infringement claim, the district court reasoned that, under the “extrinsic test” for similarity (which could be decided as a matter of law), the court first “must filter out the unprotectable elements of the plaintiff's work — primarily ideas and concepts, material in the public domain, and scenes a faire (stock or standard features[)].” The district court focused on the so-called “poses” in Hanagami’s routine, reasoning that “choreographic works are composed of a number of individual poses that, when ‘viewed in isolation,’ would not be protectable.” The court also examined Epic’s argument that “not only are the individual poses unprotectable, but the Steps as a whole” — defining “Steps” as “the two-second combination of eight bodily movements, set to four beats of music” — “are unprotectable … [as] building blocks for a choreographer’s expression.”

The district court ultimately agreed that, whether it viewed the allegedly copied Steps as “two seconds, four beats of music, or eight body positions, repeated ten times throughout the Registered Choreography … [t]here is no authority to suggest that Plaintiff’s Steps are protectable when viewed out of the context of the whole of Plaintiff’s work.” The court then concluded that, as to substantial similarity, “the two works are not substantially similar, because other than the four identical counts of poses — which are unprotected alone — Plaintiff and Defendant’s works do not share any creative elements viewing Hanagami’s work as a whole.” Hanagami appealed this decision to the Ninth Circuit.

The Ninth Circuit Reverses and Clarifies the Infringement Standard for Choreographic Works

On November 1, the Ninth Circuit reversed the district court’s judgment. The circuit began its analysis by explicitly adopting the Copyright Office Compendium’s definition of “choreographic works:” “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.” The definition further encompasses exemplary elements typically — but not always — contained in choreographic works, including “rhythmic movement in a defined space,” “compositional arrangement,” “musical or textual accompaniment,” “dramatic content,” “presentation before an audience,” and “execution by skilled performers.” In adopting the Copyright Office Compendium’s definition, the court noted that there was not “a bright line distinction between copyrightable choreography and uncopyrightable dance,” and that there were “limitations on what types of movements are copyrightable as choreography.” In particular, the court explained that while individual dance elements, such as “individual movements or dance steps by themselves are not copyrightable, … the choreographer’s selection and arrangement of the work’s otherwise unprotected elements” is protected.

After establishing its definition of choreographic works, the Ninth Circuit went on to critique the district court’s erroneous application of the extrinsic test for substantial similarity. While the extrinsic test “is a fact-driven and context-dependent inquiry,” the court noted that generally for choreographic works, the unprotectable elements are limited to “the building blocks for a choreographer’s expression, in much the same way that words and short phrases provide the basic material for writers,” whereas the protectable elements are “the choreographer’s selection and arrangement of the work’s otherwise unprotected elements.”

The court then likened the requisite extrinsic test analysis for choreographic works to that for musical works and concluded that it was erroneous for the district court to reduce choreography to “poses” as doing so “would be akin to reducing music to just ‘notes.’” Following this logic, the court emphasized that the newly-adopted definition of choreography necessitates that “the relationship between [dance] movements and patterns, and the choreographer’s creative approach of composing and arranging them together, is what defines the work.” As such, the court faulted the district court for ignoring those additional elements that necessarily define the work and “cannot be captured by reviewing static poses: the footwork, movement of the limbs, movement of the hands and fingers, and head and shoulder movement,” the tempo, and the “body shapes/positions” that “share the same pathways/transitions.” The Ninth Circuit therefore held that Hanagami had “plausibly alleged 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 — are substantially similar to the choices Epic made in creating the emote.”

In addition to reversing the district court’s handling of the extrinsic test, the Ninth Circuit also held that the district court erred in holding that Hanagami could not claim protection over the particular “steps” that Epic had allegedly copied. The district court had reasoned that because these steps were found in two seconds of “How Long” and included four beats and eight body movements (though repeated ten times in the registered choreography), the Copyright Office likely would not have registered these steps on their own, and thus Epic could not be held liable for copying them. The Ninth Circuit disagreed, recognizing that there is no bright line as to what amount of similarity is permitted before an accused work is deemed “substantially similar.” Hanagami had alleged that the copied steps were the most recognizable and distinctive portions of the entire routine. The Ninth Circuit credited this for purposes of whether he had stated a claim, and distinguished cases stating that the copying of a single sentence from a literary work or a single note from a musical composition would not be actionable.

Next, the Ninth Circuit expressed skepticism as to whether the copied segment was a “simple routine” akin to an “adapted social dance” performed by the public or a basic celebratory endzone dance. “How Long” was a complex routine performed by highly trained dancers involving entire-body movements, making it conceivable that the Copyright Office would permit just the copied portions to be registered as a standalone work. In any case, the Ninth Circuit recognized that even if the copied portions could not be registered on their own, that would not defeat a claim, as the key issue was whether Epic had unlawfully appropriated a portion of the broader registered work. Finally, the Ninth Circuit declined to decide whether Hanagami’s work, or choreographic works in general, are subject to broad or thin copyright protection, deferring consideration of the scope of protection for the district court on remand.

Tips for Practitioners

With Hanagami, the Ninth Circuit has placed choreographic works on an equal footing to other expressive works for purposes of analyzing copyright protection. The court further recognized that choreographic works cannot be reduced to a series of “poses” and that such works may encompass many other elements that make them distinct and expressive. Finally, the Ninth Circuit emphasized the need for fact-specific analysis of all copyright claims, and reiterated that while some claims may be disposed of at the motion-to-dismiss stage for lack of substantial similarity, this is a “generally disfavored” practice.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.