Ninth Circuit Revives Choreography Copyright Claims Over Fortnite Emotes–Hanagami v. Epic
Hanagami is a celebrity choreographer. He has over 4.5M YouTube followers and nearly 1B video views. He posted a video entitled “CHARLIE PUTH – How Long | Kyle Hanagami Choreography” that contained 480 “counts” of choreography, composed of 96 counts repeated by 5 sets of dancers. The video got 36M views.
Fortnite offers for purchase an emote called “It’s Complicated” that consists of 16 counts of choreography, of which Hanagami claims 4 counts are copied from his video. Hanagami prepared a video comparing his dance choreography with the emote movements. Watch it at https://www.youtube.com/watch?v=iW2yUrXXRTI
Despite the obvious overlaps, the district court ruled for Epic because it thought the emote took such a small amount of the dance and short dance routines aren’t protected by copyright. Previous blog post.
The Ninth Circuit reverses. This opinion forces the court to address the boundaries of choreographic copyright, a lightly litigated topic. While the Copyright Act expressly says choreography is copyrightable, it doesn’t define what “choreography” means. The court explains:
Like other forms of copyrightable material, choreography is composed of various elements that are unprotectable when viewed in isolation. An individual, stand-alone dance movement, such as a plie, is equivalent to an “idea” that is not protectable by copyright…What is protectable is the choreographer’s “selection and arrangement of the [work’s] otherwise unprotected elements.”…
Hanagami persuasively argues that there are several other “expressive element[s] present in choreography,” including “body position, body shape, body actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast, [and] repetition.”…reducing choreography to “poses” would be akin to reducing music to just “notes.”
Thus, Hanagami can proceed because “he has plausibly alleged 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—are substantially similar to the choices Epic made in creating the emote.”
(Unfortunately, the court gratuitously added that “it is generally disfavored for copyright claims to be dismissed for lack of substantial similarity at the pleading stage.” As the court then explains, there are many circumstances where it’s perfectly appropriate to do so, and where the failure to do so would allow the putative copyright owner to weaponize the court system. I hope the anti-dismissal sentence is rightly ignored as dicta).
What about the fact we’re dealing with only 4 “counts”?
Hanagami has more than plausibly alleged that the four-count portion has substantial qualitative significance to the overall Registered Choreography. The four counts in question are repeated eight times throughout the Registered Choreography, corresponding to the chorus and titular lyrics of the accompanying song. Hanagami alleges that the segment is the most recognizable and distinctive portion of his work, similar to the chorus of a song…
Hanagami plausibly alleged that the four-count portion is a complex, fast-paced series of patterns and movements that involves the whole body and is performed by highly-trained dancers
This is a bummer result. The court was so pumped up to resolve a novel choreography copyright case that it wanted to use the case to make a statement–even if that meant fetishizing a very short set of dance moves. At minimum, this ruling almost certainly will force Epic to rethink how it develops emotes. Its practice of drawing inspiration from real life may become too risky.
Worse, this ruling gives additional tools to litigious plaintiffs who can claim that recordings of their ordinary body movements should be considered copyrightable choreography. Even if their legal position is ultimately meritless, they can weaponize this argument to suppress the recordings, extract cash, and generally cause chaos.
Case Citation: Hanagami v. Epic Games, 2023 WL 7174242 (9th Cir. Nov. 1, 2023)
Prior Blog Posts about Emotes