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The Ninth Circuit Gets Its Groove On: Copyright And Choreography

Celebrity choreographer Kyle Hanagami alleged that the copied dance sequence in 'Fortnite' comprised the most distinctive portion of his work.

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Fortnite ScreenshotDance, dance, restitution? Way back in the tie-dyed days of 1976, Congress amended the Copyright Act to specifically extend copyright protection to choreography. Yet here we are, almost 50 years on, with nary a high-profile choreography case to ventilate the metes and bounds of protection for fancy footwork. Sure, the court in Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC found a series of yoga movies to be unprotectable as choreography, and in Martha Graham School & Dance Found., Inc. v. Martha Graham Center of Contemporary Dance, Inc. addressed the transfer of ownership of choreographic copyrights, but very little development of the law has pertained to what is sufficiently creative to qualify as copyrightable choreography.

Until now. Kyle Hanagami is a celebrity choreographer with a star-studded client list and a host of teaching gigs at elite dance schools. He has collabed with J-Lo, Biebs, and many others on dance-related projects and has the attendant millions of social media followers.

One day, while vibing to a Charlie Puth bop, he created a five-minute dance routine that he named “How Long” (in reference to the tune’s title) and registered it as a choreographic work with the Copyright Office. This work included 480 counts of choreography. At least 36 million watched Hanagami’s new routine on YouTube alone, so there was decent evidence that it appealed to the public. 

Epic is the developer and distributor of the hugely successful “Fortnite” game, from which it has reaped more than $10 billion. A not insignificant amount of those dollars were reaped by selling in-game enhancements, such as dance moves, which, in game, are called “emotes, and which users pay for with Vinderbucks.” Vinderbucks are currency that can be used exclusively in the “Fortnite” universe and can be obtained only by tendering real bucks to Epic. 

A 2020 update for “Fortnite” included a brand-spanking-new emote called “It’s Complicated” that could be obtained by a gamer for 500 Vinderbucks, which is about $5. The emote consisted of 16 counts of movement, four of which bore appreciable similarities to the corresponding four counts in Hanagami’s choreography, where those counts were repeated numerous times.

Hanagami sued Epic for copyright infringement. Epic denied it and filed a motion to dismiss claiming that Hanagami’s work was not worthy of protection and that even if it were there was insufficient substantial similarity to establish a claim. The district court sided with Epic and dismissed. On appeal, the Ninth Circuit reversed in a thoughtful and thorough opinion that vivisects two arguments often made by infringers who are caught red-handed.

Sometimes it is obvious or even undisputed that the defendant has copied from the plaintiff. This type of defendant will often assert that his copying should be excused because the plaintiff’s work isn’t all that great to begin with and thus not creative enough to garner copyright protection. The key to this defense is the infringer urging the court to “dissect” a work into its individual elements and then review those elements individually to ascertain whether they are protectable. But this argument is spurious given that every work or art, when reduced to its elements, will be unprotectable. For example, a painting is just made up of streaks of colored paint, and those streaks are not protectable in isolation. A song is made up of notes that are not protectable standing on their own. A book is made up of words that are not protectable unless considered in combination. You get the idea. Here, though, the district court took the bait and dissected Hanagami’s choreography into isolated poses and then found those poses to lack the creativity necessary for protection.

Infringers caught with their hand in the cookie jar will also at times argue that they should evade liability for infringement because they copied “only” a small portion of an artist’s work. But, this argument is specious because the copying of even a small portion of a plaintiff’s work is infringement if that portion is qualitatively important to the plaintiff’s work. And, in most infringement cases, it is important — otherwise it would pose little appeal to a copyist. The district court, though, again bought this defense. Hanagami’s case was disposed of in toto.

The Ninth Circuit, in a published opinion reversing, pointed out the flaws noted above, writing that 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.” The court found that a work should not be dissected into its constituent elements but should be instead regarded as a gestalt, holding that “while individual dance movements may not receive protection, their original selection, coordination, and arrangement … may be protect[a]ble expression.” This is exactly right, and I’m not just saying that because I argued the case the Ninth Circuit cites for this point. The court’s analysis is pellucid in stating that “[c]horeography is, by definition, a related series of dance movements and patterns organized into a coherent whole. The relationship between those movements and patterns, and the choreographer’s creative approach of composing and arranging them together, is what defines the work.” The Ninth Circuit then found that Hanagami had plausibly asserted infringement.

The Ninth Circuit also rejected Epic’s claim that it should evade liability because it only copied a “short” portion of Hanagami’s dance, noting that “the proper inquiry does not turn on the mere length of the copied material.” Instead, we must look at the qualitative importance of the purloined choreography. Hanagami alleged that the copied sequence comprised the most distinctive portion of his work, which was sufficient. Epic nevertheless urged the court to deny protection because the copied portion standing alone would likely not be granted a copyright registration by the Copyright Office. But the court deftly swept this aside as well, finding that “relevant question is not whether Hanagami could re-register only the four-count segment of choreography with the Copyright Office. The question is whether Epic unlawfully appropriated that portion from Hanagami’s Registered Choreography.”

With that, the case was returned to the district court for further proceedings. And we are reminded, as the Supreme Court recently advised in Warhol v. Goldsmith, that “district judge should not assume the role of art critic,” as the results often have two left feet.

Scott_Alan_BurroughsScott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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