Court in Epic v. Hanagami Rendered Protection for Dance ‘Useless’: Brief

Epic Games “unceremoniously copied” for its Fortnite franchise the most recognizable part of one of Kyle Hanagami’s most well-known registered choreographic works, and was rewarded with the district court’s dismissal of Hanagami’s complaint, said the choreographer’s opening brief in his 9th U.S. Circuit Appeals Court petition to reverse and remand the district court’s ruling.

Without the “inconvenience of seeking permission” or the expense of paying the choreographer for his work, Epic sold a digital version of the copied work in its online store for $8 each, said the brief. The district court dismissed Hanagami’s action “by finding as a matter of law that there existed no substantial similarity between Hanagami’s work and the accused one,” it said. “It did so without the benefit of any discovery or expert testimony.”

The district court focused on “a few static body positions solely in the portion of the work that is alleged to be infringed,” said the brief. In so doing, the court “ignored most of the artistic and expressive elements even in that short portion,” it said.

Having reduced the choreographic work to an “unrecognizable shell,” the district court acted as “the final judge of the artistic merit of the work,” said the brief. It concluded that, because in its view the Copyright Office wouldn't have registered solely the portion accused of infringing, “an infringement action cannot stand,” it said.

That “reductive analysis” would surely come as a surprise to any expert in the field of choreography, said the brief. “Like poetry is more than the sum of its words, choreography is more than its static positions.” The district court’s analysis “would be akin to looking solely at the words of a poem and concluding that each one is a common word,” it said.

There's no evidence Hanagami’s choreography, “taken as a whole or in pieces, utilizes anything that has been done before, let alone that it contains commonly used movements,” said the brief. “Nor is there any claim by Epic that they independently created the infringing choreography nor found it in the public domain,” it said. Epic’s claim that the choreography “has no distinctive expressive value is unsupported by any evidence and contrary to the allegations in the complaint,” it said. “If there was no value to it, they would not have taken it and sold it for money.”

The consequences of the district court’s dismissal are “far-reaching,” said the brief. “Even where an author of a choreographic work, an artist, can prove that an infringer intentionally copied a portion of that work, and profited off that copying, the artist would still have no legal recourse unless virtually the entire work was copied.”

Taken to its “logical conclusion,” this would entitle choreographic works “to only a thin layer of protection from potential infringers,” said the brief. The district court’s analysis “ignores not only the expressive nature of choreography but also the economics of the modern world of short-form media” on YouTube, Instagram, Facebook and TikTok, it said. It renders copyright protection for choreographers “effectively useless,” it said.

Much like other creative works that enjoy “thicker” protection, choreography contains a large array of “constituent elements,” including rhythm, beat, steps, pauses and transitions, said the brief. “A proper and fulsome rubric with which to analyze the extrinsic component of copyright infringement of choreographic works is needed and the dismissal of this action should be reversed and remanded with direction to apply that rubric.”