The 1976 Copyright Act significantly expanded intellectual property protection for dance by recognizing "choreographic works" as original works of authorship eligible for copyright protection. (Before the 1976 Act, narrative dance could be protected as a dramatic work, but abstract dance could not.) However, when Congress enacted the statute, it did not provide guidance for a key question: what is a choreographic work? Confronted with this issue, the U.S. Court of Appeals for the Ninth Circuit has adopted the definition of "choreography" set forth in the Compendium of U.S. Copyright Office Practices: "the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole." The court also weighed in on the scope of copyright protection for choreographic works and provided guidelines for lower courts to use when assessing a claim of copyright infringement. However, the court ultimately declined to decide whether all choreographic works are subject to a virtually identical or substantially similar standard when analyzing a claim of copyright infringement.
In the case at issue, Los Angeles-based choreographer Kyle Hanagami ("Hanagami") sued Epic Games, Inc. ("Epic Games"), the creator and developer of the Fortnite video game, for copyright infringement, claiming that Epic Games copied protected aspects of one of Hanagami's choreographic works. In 2017, Hanagami created and published on his YouTube channel a video depicting a five-minute dance performance containing over 480 counts of choreography, including a four-count sequence of steps repeated ten times throughout the video (the "Hanagami Choreography"). Hanagami subsequently obtained a copyright registration for the full five-minute choreographic sequence. Epic Games, in 2020, released a new chapter of its Fortnite video game and included new virtual animations that players could purchase for their avatars to perform (known as "emotes"). Hanagami alleged that one of the emotes released by Epic Games (the "Epic Games Emote") contained a segment of the Hanagami Choreography, and that this particular segment was the most recognizable and distinctive portion of his work.
Epic Games moved to dismiss Hanagami's claim on the basis that the allegedly copied dance steps were not protectable and the two works were not substantially similar. The district court granted Epic Games' motion, holding that the steps Epic Games purportedly copied were a number of individual poses that were unprotectable when viewed in isolation. The court also found that Hanagami was entitled to protection only for the way the dance steps were expressed in the five-minute work as a whole, and the collection of purportedly copied steps constituted only a small component of his full work. Based on this scope of protection, the district court compared the Hanagami Choreography (i.e., the full five-minute performance) to the Epic Games Emote and determined that the works were not substantially similar.
The Ninth Circuit reversed the lower court's ruling on the basis that the district court did not appropriately break down the elements of the choreographic work. The court agreed with Hanagami's argument that individually unprotectable "poses" are not the only relevant element underlying a choreographic work, and the relationship between movements and patterns and the choreographer's creative approach to composing and arranging them together is what defines the work. The court pointed out that other forms of copyrightable material are likewise composed of individual elements that may be unprotectable when viewed in isolation (such as words or shapes), but the particular way in which these "building blocks" are combined may be afforded copyright protection. In other words, while an individual, stand-alone dance movement may not be protectable on its own, a choreographer's original selection, coordination, and arrangement of various dance movements is protectable. The court clarified that the task of the factfinder is to compare the selection and arrangement of elements in the plaintiff's choreographic work with that in the allegedly infringing work to determine whether the two works are substantially similar.
Applying this test, the court found that Hanagami did plausibly allege 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 – were substantially similar to the choices Epic Games made in creating the Epic Games Emote. A side-by-side video prepared by Hanagami's counsel showing the allegedly copied counts from Hanagami's choreography next to corresponding clips of the Epic Game Emote was referenced by the court and can be found at: https://www.youtube.com/watch?v=vXYDr9o_FJY.
The court also rejected the lower court's finding that the sequence of steps was not subject to protection because it was only a small component of the Hanagami Choreography. The court reiterated that, as in other copyright contexts, the substantial similarity inquiry does not turn on the mere length of the copied material. Although de minimis copying is not infringement, if the copied portion is a qualitatively significant feature of the plaintiff's work, then the copier cannot escape liability simply because it is short.
Finally, the court noted that the degree of similarity required for a finding of infringement (substantially similar or virtually identical) depends on the range and extent of creative choices and expressions available to the author in creating the work. If the copyright owner's work was created by selecting from a narrow range of possible expressions of an idea, infringement only occurs if the accused work is virtually identical to it. This is known as "thin" copyright protection. In contrast, if the author had a wide range of possible expression and broad creative choices, infringement may occur if the other work is merely substantially similar to it. Hanagami urged the Ninth Circuit to hold that all choreographic works are always subject to broad protection and the substantially similar standard, but the court declined to reach that issue, finding it better left to the district court on remand.
The case is Kyle Hanagami v. Epic Games, Inc., No 22-55890 (9th Cir. Nov. 1, 2023).
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