It’s Complicated (And Actionable)

The United States Court of Appeals for the Ninth Circuit reversed the dismissal of a copyright infringement action brought by a noted choreographer against a video making company

we reverse the district court’s dismissal of Hanagami’s copyright claims against Epic. We remand for further proceedings consistent with this opinion.

The claim

Dance is one of the oldest forms of human expression. Recognition of dance as a form of copyrightable subject matter, however, is a far more recent development. While early versions of the Copyright Act extended statutory protection to dramatic works and musical compositions, dance long remained outside the purview of copyright law. In 1976, Congress for the first time extended explicit copyright protection to “choreographic works,” bringing dance in line with the other performing arts. Nonetheless, the field of choreography copyright has remained a largely undefined area of law. Few courts have had occasion to consider the scope of copyright protections for choreographic works. This appeal presents us with that novel opportunity. We consider a choreographer’s claims that Epic Games, Inc. (“Epic”), the creator of a popular videogame, infringed the copyright of a choreographic work when the company created and sold a virtual animation depicting portions of the registered choreography.

Plaintiff Kyle Hanagami (“Hanagami”) is a celebrity choreographer who owns a validly registered copyright in a five-minute choreographic work. Epic is the developer of Fortnite, a video game featuring an extensive virtual world where players represent themselves using avatars. Fortnite players can customize their avatars by purchasing “emotes,” which are virtual animations that players use to celebrate or dance in the game. Hanagami sued Epic, alleging the company released an emote that copies a distinct, four-count portion of his registered choreographic work.

More on the plaintiff

Plaintiff Kyle Hanagami is a Los Angeles-based choreographer with a star-studded resume. His choreography has been used by numerous renowned artists, including Jennifer Lopez, Britney Spears, and Justin Bieber, and he has served on the faculty at three of the top dance studios in Los Angeles. Outside of the studio, Hanagami has partnered with globally recognized brands like Nike, Disney, Google, and Netflix. Hanagami also has a substantial presence on social media. As alleged in the Complaint, filed on March 29, 2022, Hanagami had 4.54 million YouTube subscribers (with over 857 million total video views), over 1.6 million Instagram followers, and over 1.3 million TikTok followers.

Alleged infringement

In August 2020, Epic released Chapter 2, Season 3 of Fortnite, which included a new emote called “It’s Complicated.” Hanagami claims that the “It’s Complicated” emote “contains the most recognizable portion of [his] . . . [c]horeography]” from the How Long Video. The emote consists of 16 counts of movement, four of which are alleged to have been copied from Hanagami’s work. Hanagami’s choreography repeats the four counts in question several times throughout the How Long Video, corresponding to the song’s chorus. The “It’s Complicated” emote is not set to the song “How Long” and is instead accompanied by an original soundtrack without lyrics. The “It’s Complicated” emote was priced at 500 V-Bucks, the equivalent of five U.S. dollars.

Basis for reversal

We agree with Hanagami. 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. We reverse and remand to the district court on this basis.

(Mike Frisch)