9th Circuit Reverses Dismissal of Choreographer’s Copyright Claims vs. Epic

A 9th U.S. Circuit Appeals Court panel handed choreographer Kyle Hanagami a victory Wednesday, reversing the district court’s dismissal of his Copyright Act complaint in which he alleged Epic Games stole his dance moves for its flagship Fortnite franchise. The panel remanded for further proceedings on Hanagami’s claims of direct and contributory infringement of a choreographic work.

An Epic spokesperson declined comment on the decision in an email Thursday. But Hanagami and his legal team are “very pleased” with the 9th Circuit’s opinion, emailed Hanagami’s lead counsel, Hecht Partners attorney David Hecht. The court’s holding “is extremely impactful for the rights of choreographers, and other creatives, in the age of short form digital media,” Hecht told us Thursday. Hanagami “looks forward to litigating his claims against Epic and he is happy to have opened the door for other choreographers and creatives to protect their livelihood,” he said.

Hecht told the 9th Circuit in Aug. 16 oral argument that reversing the district court’s dismissal order involved “protecting an artist’s creative original work from the advances of technology” (see 2308170003). Hanagami alleged that Epic, in an emote, “unceremoniously copied” for Fortnite the most recognizable part of one of his most well-known registered choreographic works (see 2301310037).

The 9th Circuit panel agreed. In Circuit Judge Richard Paez’s opinion (docket 22-55890), the panel found that the U.S. District Court for Central California in Los Angeles “erred in its application of the substantial similarity test as Hanagami plausibly alleged that his choreography and Epic’s emote share substantial similarities.”

The district court’s application of the “extrinsic test” -- in which a court assesses the objective similarities of two works, focusing on only the protectable elements of a plaintiff’s expression -- was “the primary issue on appeal,” said Paez’s opinion. Hanagami argued the district court erred in its application of the extrinsic test when it determined that his registered choreography and Epic’s “It’s Complicated” emote weren’t substantially similar. He first challenged the court’s process for determining the protectable and unprotectable elements of his choreography.

The district court concluded that choreography is composed of a number of individual "poses" that are unprotectable when viewed in isolation, said Paez’s opinion. The court also ruled that the collection of steps that Epic allegedly copied -- a two-second combination of eight bodily movements, set to four beats of music, performed 10 times throughout the five-minute registered work -- were unprotectable as a whole, it said.

Hanagami challenged the conceptual approach of reducing choreography to poses, said Paez’s opinion. He argued that choreography is much more than a static collection of poses, and that the court failed to consider many other expressive elements of the protected choreography, it said.

'Fundamentally at Odds'

“We agree with Hanagami,” said Paez’s opinion. The district court’s approach of reducing choreography to poses “is fundamentally at odds with the way we analyze copyright claims for other art forms, like musical compositions,” it said.

The district court erred “in analyzing the elements of choreography,” said Paez’s opinion. Like other forms of copyrightable material, choreography “is composed of various elements that are unprotectable when viewed in isolation,” it said. “An individual, stand-alone dance movement, such as a plie, is equivalent to an ‘idea’ that is not protectable by copyright,” it said. As a result, subsequent choreographers “can use the same individual movements to produce new choreographic works of their own, as long as the new compositions are not substantially similar to the copyrighted work,” it said.

A choreographer similarly can’t claim protection over the use of tempo, transitions or rhythm in a choreographic work, said Paez’s opinion. What is protectable is the choreographer’s selection and arrangement of the work’s otherwise unprotected elements, it said. This approach “is consistent with copyright in other contexts,” it said.

The district court “correctly recognized that choreography falls within a selection-and-arrangement framework,” said Paez’s opinion. “But it erred at the first step of that analysis: breaking down the elements of the choreographic works,” it said. Identifying the elements of choreographic works “is admittedly not an easy task, and there is little guidance for courts in this context,” it said.

Neither the Copyright Act nor the Copyright Office’s regulations clearly specifies what constitutes the expressive element of a choreographic work, said Paez’s opinion. It’s consequently "unclear" when a work "moves from public domain steps to copyrightable expressive choreography," it said.

“We nonetheless agree with Hanagami” that poses aren’t “the only relevant element underlying a choreographic work,” said Paez’s opinion. Hanagami “persuasively argues” that several other expressive elements are present in choreography, including body position, body actions and transitions, plus the use of devices like space, timing, pauses, energy and repetition, it said: “These more discrete and technical elements are conceptually similar to elements we recognize in other copyright contexts, particularly the field of music.”

'A Coherent Whole'

The panel sees “no reason to treat choreography differently,” said Paez’s opinion. To “analogize from music to dance,” reducing choreography to poses “would be akin to reducing music” to just notes, it said. Choreography, by definition, is “a related series of dance movements and patterns organized into a coherent whole,” it said.

The relationship between those movements and patterns, and the choreographer’s creative approach of composing and arranging them together, “is what defines the work,” said Paez’s opinion. The element of poses, on its own, “is simply not dynamic enough to capture the full range of creative expression of a choreographic work,” it said.

In holding that choreographic elements beyond mere poses can exist, “we do not suggest that the same elements will be present in every choreographic work,” said Paez’s opinion. Nor is it necessary to specify “a discrete universe of elements from which a choreographic copyright infringement claim can be built,” it said.

Choreographic works “could plausibly contain multiple unique elements, and those elements can and will change depending on the work in question, “ said Paez’s opinion. The task for courts, then, “is to compare the selection and arrangement of elements in the registered choreographic work with that in the allegedly infringing work,” it said.

At the motion-to-dismiss stage, the court “must only consider whether the plaintiff has plausibly alleged that the two works share substantial similarities,” said Paez’s opinion. Because the district court failed to assess the “discrete combination of elements” Hanagami’s registered choreography, “it erred in deciding as a matter of law at the motion-to-dismiss stage that the two works were not substantially similar,” it said.

Taking the allegations in Hanagami’s complaint as true, “he has plausibly alleged substantial similarity under the extrinsic test,” said Paez’s opinion. He specifically has plausibly alleged “that the creative choices he made” in selecting and arranging elements of the choreography are “substantially similar to the choices Epic made in creating the emote,” it said. A plaintiff “need not set forth detailed factual allegations about the elements of choreography to survive a motion to dismiss,” it said.