85 F.4th 931
9th Cir.2023Background
- Kyle Hanagami, a choreographer, registered a five-minute choreographic work (the "How Long" video) that repeats a distinctive four-count segment several times (chorus portion).
- Epic Games released the Fortnite emote "It’s Complicated," which allegedly reproduces a four-count portion of Hanagami’s choreography (four of 16 counts) and sold the emote in-game.
- Hanagami sued Epic for direct and contributory copyright infringement; the district court granted Epic’s Rule 12(b)(6) motion, finding individual poses and the repeated short segment unprotectable and concluding no substantial similarity as a matter of law.
- The Ninth Circuit reviewed de novo, considered the Copyright Office Compendium definitions, and examined how the extrinsic substantial-similarity test applies to choreographic works.
- The Ninth Circuit held the district court erred by reducing choreography to isolated "poses," failing to analyze selection-and-arrangement and dynamic elements (tempo, transitions, limb/hand movement), and reversed and remanded for further proceedings.
- The court declined to decide whether choreography as a category merits "thin" or "broad" protection, leaving that question to the district court on remand with a fuller record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Protectable elements/filtering | Hanagami: choreography includes dynamic elements beyond static "poses" (tempo, transitions, limb/hand movement, pathways) that are protectable as selection-and-arrangement | Epic: only individual poses/short combinations are unprotectable building blocks; plaintiff failed to identify protectable expression | Court: reversed — reducing choreography to poses was error; courts must analyze selection-and-arrangement and dynamic elements under the extrinsic test |
| Short/small component (four-count segment) | Hanagami: the repeated four-count segment is qualitatively significant (most recognizable portion, repeated chorus) and thus protectable | Epic: the segment is a brief, small part of a five-minute work and thus unprotectable or de minimis | Court: reversed — length alone is not dispositive; qualitative significance matters; dismissal on that basis was erroneous |
| Application of extrinsic test at pleading stage | Hanagami: complaint plausibly alleges copying of protectable elements and selection/arrangement sufficient to survive 12(b)(6) | Epic: absence of protectable similarity means extrinsic test fails as a matter of law | Court: extrinsic analysis must consider protectable selection-and-arrangement; Hanagami plausibly alleged substantial similarity and claim survives pleading stage |
| Thin vs. broad copyright protection | Hanagami: choreography should receive broad protection (wide expressive choices) | Epic: some choreographic elements may merit only thin protection | Court: reserved decision — declined to decide here and remanded for district court to assess with fuller record |
Key Cases Cited
- Horgan v. Macmillan, Inc., 789 F.2d 157 (2d Cir. 1986) (photographs and discussion of choreography definition and protectability)
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (idea-expression dichotomy and originality requirement)
- Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018) (two-part copying/unlawful appropriation framework; extrinsic test focuses on protectable elements)
- Skidmore v. Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (selection-and-arrangement approach; analysis of substantial similarity)
- Swirsky v. Carey, 376 F.3d 841 (9th Cir. 2004) (combination of unprotectable elements can be protectable; parsing musical elements)
- Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018) (application of extrinsic/intrinsic tests; caution about resolving music-based similarity at pleading stage)
- Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015) (sequence-of-poses treated as uncopyrightable idea/process)