And the Dance Goes On: Hanagami v. Epic Games Inc. and the Future of Choreography Lawsuits

On November 1, 2023, the Ninth Circuit delivered its decision in the appeal of Hanagami v. Epic Games Inc., reversing the Central District’s grant of defendant Epic Games’ motion to dismiss in the copyright infringement lawsuit brought by choreographer Kyle Hanagami. While this certainly represents a victory for Mr. Hanagami, and potentially other individuals seeking to enforce their rights in choreographic works, the Ninth Circuit’s decision was a narrow one, and this legal dance is likely far from over. But what lessons can game developers learn from this decision?

Background and Legal Standard

Kyle Hanagami is a Los Angeles-based choreographer who has worked with a long roster of musicians, actors, and other celebrities. In 2017, Mr. Hanagami published a YouTube video featuring multiple dancers performing an original routine set to Charlie Puth’s song “How Long.” Sometime later, Epic Games added a new purchasable “emote” in their online multiplayer game Fortnite called “It’s Complicated,” and Mr. Hanagami alleged that the “It’s Complicated” emote infringed the protected choreography in his “How Long” dance routine (Mr. Hanagami’s counsel also uploaded a YouTube video comparing the two, available here). In 2021 he registered the choreography for copyright and then filed suit against Epic Games in the Central District of California.

Epic Games moved to dismiss Mr. Hanagami’s complaint, arguing that the portion of the work at issue—a sequence of “steps” set to four counts of music and repeated twice by dancers during the song’s chorus—were not protectable, under the well-established precedent that basic dance moves are not protected under the Copyright Act.  Epic further argued that because these allegedly unprotected “steps” were the only similarities between “How Long” and “It’s Complicated,” that the remaining expression was not substantially similar. If the court determined that the two were not substantially similar, then Epic Games’ motion should be granted and Mr. Hanagami’s claim dismissed.

Ninth Circuit courts use a two-part test to determine substantial similarity: the extrinsic test and the intrinsic test. While the intrinsic test typically is reserved for juries, district courts can and often do assess the extrinsic test on pleading motions like a motion to dismiss. The extrinsic test requires the court to perform a “filtering” test, where it identifies and then filters out the unprotectable elements in the registered work, and then compares whether the remaining protectable elements of the two works are substantially similar. If the court determines that there may be substantial similarity between the protected elements, then there remain material questions of fact for the jury to decide and the case can proceed. However, if the court can determine as a matter of law that the protectable elements are not substantially similar, then the claim necessarily fails and can be dismissed.

In applying the extrinsic test, the Central District reasoned that choreography is composed of “a number of individual poses” that are unprotectable when viewed in isolation, and that the collection of “steps” Epic had allegedly copied were unprotectable as a whole. The court also relied on precedent and guidance from the Copyright Office that basic dance moves like “the basic waltz step, the hustle step, and the second position of classical ballet” are individually unprotectable. On this basis, the district court concluded that, after filtering out these non-protectable elements, substantial similarity could not be found, and granted Epic’s motion.  Mr. Hanagami appealed this decision, arguing that choreography is far more than a “static collection of poses” and contains many other “expressive elements” including “movement of the limbs, movement of the hands and fingers, head and shoulder movement, and tempo.”

The Ninth Circuit’s Decision

The Ninth Circuit ultimately agreed with Mr. Hanagami and reversed the Central District’s decision, holding that the district court erred by reducing choreography to a mere series of static “poses.” When filtering out unprotectable elements, certain types of works like choreography or photography prove more difficult to filter, so courts will employ a “selection and arrangement” approach to assess substantial similarity. This approach looks to the “particular way in which the artistic elements form a coherent pattern, synthesis, or design,” and so a collection of individually unprotectable elements may still itself be protectable as a whole; sort of a legal example of the whole being greater than the sum of its parts.

The court also acknowledged that this “selection and arrangement” approach can be tricky, especially for works like choreography, as there are not well-defined standards and very little guidance for assessing when similarity in the selection and arrangement of elements becomes substantial. But the court agreed with Mr. Hanagami that static “poses” are not the only relevant element underlying a choreographic work, and it can also include “body position, body shape, body actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast, [and] repetition.” Comparing choreography to music, the court observed that reducing a choreographic work to just “poses” was akin to reducing a musical work to just “notes.”

Equally important to what the Ninth Circuit did decide is to note what it didn’t decide. The panel did not determine on appeal that the “It’s Complicated” emote is substantially similar to Mr. Hanagami’s routine, or that Epic Games’ emote infringed the “How Long” choreography. Instead, the Ninth Circuit narrowly held that the district court had erred in filtering out elements only on the premise that individual dance moves were not copyrightable, failing to account for the other expressive aspects of choreography, and determining as a matter of law that the two works were not substantially similar. To survive a motion to dismiss, Mr. Hanagami needed only to plausibly allege that the two works were substantially similar under the extrinsic test, which the Ninth Circuit held he succeeded in doing.

What This Means for Game Developers

For one, this appeal has potentially breathed some new life into the choreography lawsuits we’ve seen brought against game developers. Over the last few years, numerous cases have been brought and later dropped by individuals alleging that their copyright-protected choreography was unlawfully copied and included in games like Fortnite. Alfonso Ribeiro of Fresh Prince of Bel Aire fame, Terrence “2 Milly” Ferguson, and Russel “Backpack Kid” Horning, among others, all dismissed their copyright lawsuits against Epic Games following the Supreme Court decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, which held that plaintiffs must wait for the Copyright Office to act on an application before filing suit, rather than being able to file suit as soon as they applied for registration. Game developers and other content creators are encouraged to register copyright in their works, and those who face potentially infringing activity should seek expedited processing of applications if they have not already secured copyright protections – and we can help you with both!

Mr. Hanagami’s case is different from these earlier lawsuits, as he secured copyright registration in the “How Long” routine prior to filing suit against Epic. Should he see more success in this case, it could signal the start of a fresh round of choreography copyright cases cropping up. Game developers that include dances, celebrations, or other animated emotes in their games should consider focusing on creating original routines or feature only real-world dances that are widely known and not associated with any specific individuals, songs, or videos.

The court’s emphasis on protections in the “selection and arrangement” of otherwise-unprotectable elements also applies to more than just choreography. Many aspects of a game that might otherwise receive little or no protection—such as individual elements that comprise the user interface—can still factor into an infringement analysis under a selection and arrangement theory, especially if a court looks to an overall “look and feel” comparison between a protected and an allegedly-infringing product. While this may be the first time we’re seeing this applied to choreography as opposed to basic dance moves or exercise routines, the idea that there can be protections in the totality of a work is by no means new. As such, as is always the case with copyright, originality is always the safest bet.

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Tyz Law Group is a boutique litigation and IP counseling firm comprised of former big law and in-house attorneys with highly specialized expertise in the technology sector.  If you have any questions about the issues discussed in this article, please do not hesitate to contact us at (415) 868-6900 or contact@tyzlaw.com.  

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