UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KYLE HANAGAMI, an individual, No. 22-55890

Plaintiff-Appellant, D.C. No. 2:22-cv-02063- v. SVW-MRW EPIC GAMES, INC., a North Carolina corporation; DOES, 1 through 10, OPINION inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted August 16, 2023 Anchorage, Alaska

Filed November 1, 2023

Before: Mary H. Murguia, Chief Judge, and Richard A. Paez and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Paez 2 HANAGAMI V. EPIC GAMES, INC.

SUMMARY *

Copyright

The panel reversed the district court’s dismissal of an action under the Copyright Act and remanded for further proceedings on claims of direct and contributory infringement of a choreographic work. Choreographer Kyle Hanagami claimed that Epic Games, Inc., the creator of the videogame Fortnite, infringed the copyright of a choreographic work when the company created and sold a virtual animation, known as an “emote,” depicting portions of the registered choreography. The panel held that, under the “extrinsic test” for assessing substantial similarity, Hanagami plausibly alleged that his choreography and Epic’s emote shared substantial similarities. The panel held that, like other forms of copyrightable material such as 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. The panel held that “poses” are not the only relevant element, and a choreographic work also may include body position, body shape, body actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast, and repetition. The panel concluded that Hanagami plausibly alleged that the creative choices he made in selecting and arranging elements of the choreography—the movement of the limbs, movement of * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. HANAGAMI V. EPIC GAMES, INC. 3

the hands and fingers, head and shoulder movement, and tempo—were substantially similar to the choices Epic made in creating the emote. The panel held that the district court also erred in dismissing Hanagami’s claim on the ground that the allegedly copied choreography was “short” and a “small component” of Hanagami’s overall work. The panel declined to address the issue whether the work was entitled to broad or only thin copyright protection.

COUNSEL David L. Hecht (argued), Maxim Price, and Kathryn L. Boyd, Hecht Partners LLP, New York, New York, for Plaintiff-Appellant. Dale Cendali (argued) and Joshua L. Simmons, Kirkland & Ellis LLP, New York, New York; Yungmoon Chang, Kirkland & Ellis LLP, Los Angeles, California; for Defendants-Appellees. 4 HANAGAMI V. EPIC GAMES, INC.

OPINION PAEZ, Circuit Judge:

Dance is one of the oldest forms of human expression. Recognition of dance as a form of copyrightable subject matter, however, is a far more recent development. While early versions of the Copyright Act extended statutory protection to dramatic works and musical compositions, dance long remained outside the purview of copyright law. In 1976, Congress for the first time extended explicit copyright protection to “choreographic works,” bringing dance in line with the other performing arts. Nonetheless, the field of choreography copyright has remained a largely undefined area of law. Few court