Hey! That’s My Move! Ninth Circuit Remands Choreography Copyright Fortnite Case

The law on choreography copyrights is not well-developed, so the decision provides important guidance and takeaways for choreographers and content creators alike.

The District Court’s Prior Decision in Favor of Epic, the Game’s Owner

At the pleading stage, the district court considered and dismissed Hanagami’s case under the Ninth Circuit’s “extrinsic test,” which is focused on whether there is substantial similarity of protectable expression among the at-issue works. As a part of the extrinsic test, courts must filter out unprotectable elements before comparing the works for substantial similarity. During that threshold filtration step, the lower court determined that the poses within Hanagami’s “How Long” work were not independently protectable in isolation. It also noted that there is no authority to suggest a short portion of Hanagami’s routine could be protectable in isolation and outside of the context of the choreographic work as a whole. The district court concluded that Epic’s “It’s Complicated” emote is not substantially similar to Hanagami’s “How Long” choreographic work as a whole, therefore dismissal as a matter of law was warranted.

The Appellate Court’s Reversal in Favor of Hanagami, the Choreographer

On appeal, the Ninth Circuit reversed the early-stage dismissal, found plausible claims of direct and contributory infringement of a choreographic work were pled, and remanded the case back to the district court for further adjudication of the merits. Among other things, the Ninth Circuit found that poses are not the only relevant expressive element to be considered in a copyright infringement claim of a choreographic work and that the district court erred in limiting its review to static poses. Importantly, the Ninth Circuit explicitly adopted the US Copyright Office’s definition of “choreography,” providing some much-needed additional guidance for future analysis. The following are the appellate court’s main lines of reasoning, of which content creators and artists should take note:

1. Short is not the same as insignificant.

The Ninth Circuit disagreed with Epic Games’ argument and the district court’s finding that the moves used by the animated characters are only a small part of Hanagami’s entire work and thus unprotectable in isolation. Instead, the appellate court held that Hanagami plausibly alleged that the copied moves have substantive qualitative significance to the overall dance, as they are the most recognizable part of his work.

2. Unprotectable elements make a protectable whole.

The Ninth Circuit disagreed with the lower court’s finding that the choreography at-issue was composed of a collection of unprotectable individual poses that were also unprotectable as a “small component” of the entire work. Instead, the appellate court held that choreography is potentially protectable under a copyright law “selection and arrangement” theory. At the outset, the court defined choreography as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole” and emphasized that “static poses cannot possibly capture the flow of movement that is integral to choreography as a form of art.” It went on to hold that while like music, “choreography is composed of various elements that are unprotectable when viewed in isolation,” what is protectable is “the choreographer’s selection and arrangement of the work’s otherwise unprotectable elements.” Continuing with the music analogy, the court noted that when songs are alleged to be infringing, courts look beyond the notes in comparing works: they examine melody, harmony, structure, lyrics, chord progressions, and other characteristics of a work to determine the question of substantial similarity. As such, the Ninth Circuit reasoned that when assessing choreography for substantial similarity, the analysis cannot be limited to merely the “poses” used, but rather must consider other elements like body position, canon, motif, pauses, timing, use of space, energy, and repetition.

3. Simple is not so simple.

The Ninth Circuit also held that the district court erred in describing the four-count segment at-issue as a “simple routine.” The court looked to legislative history and the US Copyright Office’s guidance to reiterate that social dance steps and simple routines are not protectable. Nonetheless, the court found that Hanagami plausibly alleged that the segment of the choreographic work at-issue is complex and could alone be protectable even without the other portions of the registered choreographic work. But the court also cautioned that fact and expert discovery would likely be required before the court could determine if the segment was in fact independently protectable.

This decision provides much needed guidance on the protectability of choreographic works and the extent to which they can be used to take action against potential infringements, especially when the accused taking comprises only a part of the underlying registered work. To learn more about how this decision could impact your business, please contact the ArentFox Schiff Copyright team.