Appellate Update: Ninth Circuit Permits Choreographer To Sue Over Fortnite Emote

On November 1, 2023, the Ninth Circuit in Hanagami v. Epic Games, Inc. overturned a district court’s order dismissing a copyright infringement action brought by a choreographer against Epic Games, Inc. In so doing, the Ninth Circuit expanded the copyright protections for choreography by adopting a flexible test for evaluating substantial similarity, recognizing that choreography cannot be reduced to mere poses alone. Additionally, the court emphasized that the amount of a work that was copied turns not just on the quantity of the copying, but also the qualitative nature of what was copied. Applying these standards to the case at-hand, the Ninth Circuit concluded that the plaintiff had plausibly alleged that the two works were substantially similar, and therefore reversed the dismissal of the case and remanded for further proceedings.

Background

Plaintiff Kyle Hanagami is a celebrity choreographer and Defendant Epic Games is the developer of the well-known videogame Fortnite. In Fortnite, players represent themselves with digital avatars that can be customized in various ways. One facet of customization is the ability to purchase “emotes,” i.e., virtual animations used in the game. These animations are wide-ranging, but often involve avatars dancing. Players can purchase these emotes for in-game currency.

On November 11, 2017, Hanagami published a YouTube video (the “How Long” video) which contained a five-minute dance consisting of 480 counts of choreography (or, 96 counts repeated by five different people). In August 2020, Epic Games released a new emote for Fortnite called “It’s Complicated.” This emote contained 16 counts of choreography, four of which Hanagami claimed came from his How Long video. In February 2021, Hanagami applied for—and was granted—a copyright registration of his choreography in the How Long video. Hanagami then brought suit against Epic Games for copyright infringement.

The district court granted Epic Games’ motion to dismiss. The court found that Epic Games had only allegedly copied a two-second combination of eight bodily movements over four beats of music. The district court then set out a continuum between copyrightable choreography and uncopyrightable dance, and concluded that these eight bodily movements alone constituted unprotectable dance. According to the district court, Hanagami was only entitled to protection for the entire choreography in the How Long video. And, when the Fortnite emote was compared to the entire dance, there was no substantial similarity.

The Ninth Circuit’s Decision

On appeal, the Ninth Circuit addressed two issues. First, the court considered whether Hanagami had alleged substantial similarity. This included reviewing (a) the district court’s analysis of the elements of choreography, and (b) the conclusion that the work was unprotectable because it was short. Second, the court considered whether choreographic works are entitled to thin or broad copyright protection.

One element of copyright infringement in the Ninth Circuit is, unsurprisingly, copying. This involves both (1) copying, and (2) unlawful appropriation. To show copying, a plaintiff must merely show that there are similarities one would not expect if the two works were created independently. Op. at 16. In contrast, unlawful appropriation required a showing that the works are substantially similar. In the Ninth Circuit, this involves a two-part test. Part one is the “extrinsic test,” which assesses the objective similarities of the works by looking at only the protectable elements of the plaintiff’s work. Op. at 17. Part two is the “intrinsic test,” which considers the similarity of expression from the perspective of a reasonable observer with no expert assistance. Only the extrinsic test is applied at the pleadings stage.

The opinion in Hanagami focused exclusively on the extrinsic portion of the substantial similarity test. The Ninth Circuit began by clarifying the scope of protection for choreography under the Copyright Act, 17 U.S.C. § 101 et seq. The Ninth Circuit endorsed the district court’s continuum between copyrightable choreography and uncopyrightable dance, but noted that it had yet to adopt a definition for these terms. The court then officially adopted the definitions found in the Compendium of U.S. Copyright Office Practices (“Compendium”). In the Compendium, “choreography” is defined as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.” Compendium § 805.1 (internal quotations and citations omitted). And “dance” is defined as the “static and kinetic succession[] of bodily movement in certain rhythmic and spatial relationships.” Id. § 805.4(A).

With these definitions established, the Ninth Circuit proceeded to consider what the substantial similarity test involves for choreographic works. Below, the district court considered whether the selection and arrangement of poses between works was substantially similar. Although the Ninth Circuit agreed with the district court that the choreographer is entitled to protection over their “selection and arrangement” of otherwise unprotected elements of movement, the Ninth Circuit held that the district court erred in treating the elements of choreographic works as reducible to mere poses. Op. at 20-21. According to the Ninth Circuit, this is akin to wrongly treating music as just “notes.” Id. at 22. Instead, the Ninth Circuit held that choreography consists of various other expressive elements, like body position, use of space, and motif.

Applying this framework, the court concluded that Hanagami had plausibly alleged that Epic Games had copied his choreography in the How Long video. In particular, the Ninth Circuit focused on his allegations that (1) the works contained similar movements of the limbs, hands, fingers, head, shoulder, and feet; (2) the works adopted an identical tempo; and (3) the works contained at least eight of the same body shapes/positions and shared pathways and transitions. Id. at 23-24. On the basis of these similarities, the Ninth Circuit held that the district court erred in concluding that the two works were not substantially similar. And, as a post-script, the Ninth Circuit expressed its disfavor for resolving substantial similarity on the pleadings. Id. at 24-25.

The Ninth Circuit then held that the district court also erred in holding that the poses in Hanagami’s choreography were unprotectable because the poses were just a small component of the overall How Long video. Although the Ninth Circuit agreed that de minimis copying is not actionable, the court emphasized that this inquiry does not turn on mere length of the copied work. Id. at 26. Rather, the question is whether the copied portion is “significant,” which involves both a quantitative and qualitative analysis. Id. at 27. As a matter of law, Hanagami had plausibly alleged that the choreography used in Fortnite had substantial qualitative significance. Id.

Finally, the Ninth Circuit considered the applicability of thin versus broad copyright protection for choreographic works. When a work contains only a narrow range of possible expression, then its protection is “thin” and it can only be infringed if another work is virtually identical. Id. at 29. In contrast, if a work is broadly expressive, then it has “broad” protection and can be infringed if another work is substantially similar. Id. Hanagami urged the Ninth Circuit to hold that choreographic works are always entitled to broad copyright protection, but the Ninth Circuit declined to adopt a bright-line rule of this sort.

Implications

1. Hanagami firmly expands copyright protections for choreographic works. This could have ripple effects for game creators. Movements or poses that were previously considered “dance” could now fall under the “choreography” bucket, meaning that virtual characters doing certain dances may now be infringing protected works. And, given the Ninth Circuit’s flexible evaluation of important elements in the choreographic work, there is little definitive guidance for game creators at the moment.

2. The Ninth Circuit emphasized that the substantial similarity test should rarely be resolved on a motion to dismiss. This likely means future courts will be less inclined to grant motions to dismiss on copyright claims.

3. Hanagami makes clear that de minimis copying turns not just on the quantity of the copied work, but also the qualitative nature of the copied work. Thus, a hypothetical defendant could not defend its copying of the first four notes of Beethoven’s fifth symphony on the basis that these are just four notes out of hundreds. Were Beethoven’s fifth not in the public domain, Beethoven could argue under Hanagami that these four notes are so iconic that the copying was qualitatively substantial, even if not quantitatively so.

¹ In laying out various examples of these elements, the Ninth Circuit was careful not to establish any definitive list of necessary elements to consider. The court cautioned that choreographic works will contain elements that “can and will change depending on the work in question.” Id. at 23. So, future courts must treat choreographic analysis as highly fact-intensive.