The Moral of the Blog. Choreographic works are copyrightable under the 1976 Copyright Act. However, just how far that protection reaches under the jurisprudence of the various circuits may well depend on whether the circuit adopts the U.S. Copyright Compendium’s definition of choreography which is favorable to choreographers. As with any copyright infringement case, the trier of fact is tasked with determining whether the copyrighted work and the alleged infringing work are substantially similar wherein the analysis involves both a quantitative (how much?) and qualitative (how significant?) analysis. District courts are generally the gate keeper in determining if a work qualifies for copyright protection. Although choreographic works are among the least copyrighted works, the decision discussed below is instructive because of its focus on quantitative vs qualitative analyses of infringement.
A Word of Caution. It is not clear just how the plaintiff in the case discussed below became aware of potential copyright infringement of his registered work. It must be emphasized that today numerous AI programs exist which can search the Internet to find infringing works. Such software is now being routinely used by photographers. Generative AI also has huge implications in the arena of copyright infringement which the Copyright Office is well aware of and attempting to address.
Discussion. When it comes to copyrightable works, we generally think of books, musical compositions, sound recordings, paintings, and software. The Ninth Circuit’s Nov. 1, 2023 decision in Hanagami v. Epic Games, Inc., et al. is a reminder that choreography is a protectable work under U.S. copyright law since the enactment of the 1976 Copyright Act, the first federal copyright statute to provide express protection for “choreographic works” which are “original works of authorship.” 17 U.S.C. § 102(a)(4).
In Hanagami, a choreographer commenced a copyright infringement lawsuit against the creator of a videogame having virtual animation known as “emote” which the choreographer claimed depicted portions of his registered choreography. The dance routine had first appeared on YouTube in 2017, and Hanagami obtained a copyright registration in 2021. Epic Games argued that the choreographer had failed to state a claim because the allegedly copied dance steps were not protectable elements of the copyrightable work and thus not substantially similar to Epic’s remote. The district court agreed by focusing on the choreography’s individual poses rather than the “whole” work, concluding that the copied portion of the work was closer to a uncopyrightable “short routine” and comprised a “small component” of the choreographer’s work. As such, there was no substantial similarity between the copyrighted work and the emote and the case was dismissed.
The Ninth Circuit disagreed. In doing so, the Court noted that the Act does not specifically define choreographic works and that there is little case law pertinent to infringement of choreographic works. The Hanagami Court adopted the Copyright Office’s definition of choreography stated in the Compendium of U.S. Copyright Office Practices. The Compendium is not legally binding on any court, and was drafted by the Copyright Office to provide guidance and interpretation of various aspects of copyright law. Here, the Court relied on the definition as persuasive authority. Slip opinion, FN 10. It concluded that the district court’s approach of reducing the choreography to “poses” was at odds with the Ninth Circuit’s way of analyzing copyright claims for other art forms, like musical compositions.
The Compendium defines choreography as “the composition and arrangement of a related series of dance movements and patterns into a coherent whole.” Although related, dance and choreography are not synonymous. Dance is defined by the Compendium as the “static and kinetic succession of bodily movement in certain rhythmic and spatial relationships. The Court was careful to point out that the Compendium does not draw a bright line distinction between copyrightable choreography and uncopyrightable dance. However, to be copyrightable, the choreography must not be simply based on common dance themes such as a basic foxtrot step or a common ballet position. As with book themes (e.g., political satire) or song themes (e.g., a breakup), choreographers should be able to use certain “building” blocks of dance and choreography at will. “The uncopyrightable elements of a dance instead function as the building clocks for a choreographer’s expression in such the same way that words and short phrases provide the basic material for writers.” Slip opinion at 20.
The Court held that the district court incorrectly found that the choreographic work was not protectable by focusing on the individual, unprotectable elements. Indeed, “reducing choreography to “poses” would be akin to deducing music to just “notes.” Slip opinion at 22. Instead, the Court agreed with the choreographer that his protectable elements include not only the dancer’s poses but also their body potion, body shape, body actions, transitions [between poses], use of space, pauses, timing, energy, canon, motif, contrast, and repetition. Slip opinion at 21. Accordingly, what defines choreographic works is the relationship between these movements and patterns and the Hanagami alleged that the copied segment is the most recognizable and distinctive portion of his work, similar to the chorus of song which is repeated more than once. Hence, a jury may well find the copied portion to be qualitatively significant Slip opinion at 27. Slip opinion at 22.
A good part of the Hanagami decision focuses on the challenges juries face when determining whether an alleged infringing work such as a choreographic work is substantially similar to a copyrighted work. Generally, de minimis copying is not actionable. In Hanagami, the alleged copying included a two-second combination of eight bodily movements, set to four beats of music performed ten times throughout the five-minute registered mark which at first blush may seem de minimis. The district court had additionally dismissed the case by finding that the allegedly copied choreography was “short” and a “small component” of Hanagami’s overall five-minute routine. Interestingly, Epic Games did not argue at the district court level that the alleged copying was de minimis.
The Ninth Circuit held that the district court had also erred in its de minimis analysis. As the Court stated, the proper inquiry is not merely based on the mere length of the copied material. “The question in each case is whether similarity relates to matter that constitutes a substantial portion of the plaintiff’s work which is an “evaluation [that]must occur in the context of each case, both qualitatively and quantitatively. Slip opinion at 26 quoting Nimmer on Copyright § 13.03 (2023). Accordingly, what matters is whether the copied portion is deemed significant. The usage of a relatively small portion of an entire work may still be infringing if that portion is qualitatively important. Indeed, Hanagami alleged that the copied segment is the most recognizable and distinctive portion of his choreographed work, similar to the chorus of song which is repeated more than once.
By way of a musical composition example, consider the iconic theme song for the movie “Jaws.” The first few stanzas are the most recognizable portion of the score. Those of us who have seen Jaws are reminded of the movie whenever those stanzas are heard. Qualitatively, these few stanzas would be of immense qualitative importance in any copyright infringement lawsuit involving the score.
The determination of substantial similarity is generally made by the trier of fact. In the Ninth Circuit, the standard is the “intrinsic test” which focuses on “the similarity of expression from the standpoint of the ordinarily reasonable observer with no expert assistance.” Slip opinion at 17. The commentator emphasizes that jury outcomes are difficult to predict in a copyright infringement case because of the subjectivity of the substantial similarity analysis even under the “reasonable observer” test.
Not surprisingly, the Court reversed the district court’s dismissal of Hanagami’s copyright infringement claims and remanded the case for further proceedings on two grounds: 1) its failure to focus on the choreographed work as a whole to determine its eligibility for protection rather than on the unprotectable individual elements; and 2) its failure to assess the qualitative significance of the allegedly copied portion of the work. Apparently, the district court would only have “accepted” the work as being protectable if Epic Games had used the copyrighted work in its entirety.
The commentator notes that the work had been registered by the U.S. Copyright Office several years after the work had appeared on You Tube or was published. Accordingly, the choreographer will most likely need to prove damages (a challenging endeavor) since statutory damages will not be available. This is why it is important to seek copyright registration within 90 days of publication so that that any copyright infringement can seek statutory damages. Apparently, the district court would only have “accepted” the work as being protectable if Epic Games had used the copyrighted work in its entirety.
Take Home Points. The Hanagami decision drives home the point that copyright infringement cases are complex. Even where issues of copyrightability do not arise, substantial similarity determinations are often not predictable and may vary from jury to jury for all but the most obvious cases of blatant copyright infringement. Nevertheless, copyright protection is intended to protect creators from the unauthorized use of their creations. It is highly recommended that copyright registration applications be filed within 90 days of the work’s publication to reap the benefits of statutory damages and shifted attorneys’ fees and costs in a copyright infringement lawsuit if infringement is proven.
In Need of Legal Counsel on Copyright Matters? Contact Susan at 305-279-4740 for all matters related to copyright law from registration to copyright infringement lawsuits.
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