FOR PUBLICATION
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 courts have had occasion to
consider the scope of copyright protections for
choreographic works. This appeal presents us with that
novel opportunity. We consider a choreographer’s claims
that Epic Games, Inc. (“Epic”), the creator of a popular
videogame, infringed the copyright of a choreographic work
when the company created and sold a virtual animation
depicting portions of the registered choreography.
Plaintiff Kyle Hanagami (“Hanagami”) is a celebrity
choreographer who owns a validly registered copyright in a
five-minute choreographic work. Epic is the developer of
Fortnite, a video game featuring an extensive virtual world
where players represent themselves using avatars. Fortnite
players can customize their avatars by purchasing “emotes,”
which are virtual animations that players use to celebrate or
dance in the game. Hanagami sued Epic, alleging the
company released an emote that copies a distinct, four-count
portion of his registered choreographic work.
HANAGAMI V. EPIC GAMES, INC. 5
To prevail on a claim of copyright infringement, a
plaintiff must show that his original work and the allegedly
infringing work are “substantially similar.” At the motion to
dismiss stage, the question is whether the plaintiff has
plausibly alleged substantial similarity between the original
work and the allegedly infringing work. The dispute in this
case thus turns on how to properly apply the substantial
similarity test in the context of choreographic works to
determine whether Hanagami has plausibly alleged that his
choreographic work and Epic’s emote are substantially
similar.
In moving to dismiss, Epic argued that Hanagami failed
to state a claim because the allegedly copied dance steps
were not protectable elements of Hanagami’s work, and thus
not substantially similar to Epic’s emote. Hanagami argued
that the dance steps in question were identical to Epic’s
emote and comprised the most recognized portion of his
work.
The district court agreed with Epic and dismissed
Hanagami’s copyright claims on the ground that Hanagami
failed to plausibly allege that Epic’s emote was substantially
similar to his registered choreography. The court concluded,
as a matter of law, that Hanagami lacked protection for the
individual “poses” in the choreography and that he could not
claim protection over the allegedly copied portion of
choreography because it was closer to an uncopyrightable
“short” routine and comprised a “small component” of
Hanagami’s choreography. Comparing the entirety of
Hanagami’s registered choreography to Epic’s emote, the
court concluded there was no substantial similarity between
the two works.
6 HANAGAMI V. EPIC GAMES, INC.
We conclude the district court erred in its application of
the substantial similarity test as Hanagami plausibly alleged
that his choreography and Epic’s emote share substantial
similarities. We thus reverse and remand for further
proceedings.
I.
A.
Plaintiff Kyle Hanagami is a Los Angeles-based
choreographer with a star-studded resume. His
choreography has been used by numerous renowned artists,
including Jennifer Lopez, Britney Spears, and Justin Bieber,
and he has served on the faculty at three of the top dance
studios in Los Angeles. Outside of the studio, Hanagami has
partnered with globally recognized brands like Nike, Disney,
Google, and Netflix. Hanagami also has a substantial
presence on social media. As alleged in the Complaint, filed
on March 29, 2022, Hanagami had 4.54 million YouTube
subscribers (with over 857 million total video views), over
1.6 million Instagram followers, and over 1.3 million
TikTok followers.
On November 11, 2017, Hanagami published a YouTube
video titled “CHARLIE PUTH – How Long | Kyle
Hanagami Choreography” (the “How Long Video”). 1 The
video contains a five-minute dance performed to the song
“How Long” by singer Charlie Puth. The dance contains
about 480 counts of choreography, consisting of ninety-six
1
The How Long Video is available via Hanagami’s YouTube channel.
See Kyle Hanagami, CHARLIE PUTH – How Long | Kyle Hanagami
Choreography, YouTube (Nov. 11, 2017),
https://www.youtube.com/watch?v=iW2yUrXXRTI
[https://perma.cc/L3DH-MS3Z].
HANAGAMI V. EPIC GAMES, INC. 7
counts repeated by five different groups of dancers. As of
May 2022, the How Long Video had garnered nearly 36
million views on YouTube.
Epic is the creator and developer of the Fortnite video
game. Since its release in July 2017, Fortnite has become
one of the most popular video games ever, with revenue
exceeding $10 billion. Fortnite is a free-to-play game
featuring an extensive virtual world where players can
explore, build, and battle against each other via player-to-
player combat. Fortnite also provides other entertainment
options within its online platform, including virtual concerts
performed by celebrity artists.
Epic generates revenue from Fortnite by maintaining an
in-game marketplace for entertainment content. Within the
marketplace, players use real money to purchase Fortnite’s
virtual currency, called “Vinderbucks” or “V-Bucks,” which
can be used to buy in-game customizations. 2 For example,
players can use V-Bucks to buy clothing and accessories for
their virtual avatars, which represent the players during
gameplay.
Fortnite players can also purchase virtual animations,
known as “emotes,” for their avatars to perform. Emotes are
animated movements or dances that players use in
celebration of a victory or during virtual concerts. The cost
of an emote varies from 200 V-Bucks to 800 V-Bucks,
depending on how “rare” the emote is considered within the
game.
2
Fortnite offers four pricing levels for purchasing V-Bucks, ranging
from 1,000 V-Bucks for $9.99 to 13,500 V-Bucks for $99.99.
8 HANAGAMI V. EPIC GAMES, INC.
In August 2020, Epic released Chapter 2, Season 3 of
Fortnite, which included a new emote called “It’s
Complicated.” 3 Hanagami claims that the “It’s
Complicated” emote “contains the most recognizable
portion of [his] . . . [c]horeography]” from the How Long
Video. The emote consists of 16 counts of movement, four
of which are alleged to have been copied from Hanagami’s
work. 4 Hanagami’s choreography repeats the four counts in
question several times throughout the How Long Video,
corresponding to the song’s chorus. The “It’s Complicated”
emote is not set to the song “How Long” and is instead
accompanied by an original soundtrack without lyrics. The
“It’s Complicated” emote was priced at 500 V-Bucks, the
equivalent of five U.S. dollars.
In February 2021, Hanagami applied for a copyright
registration for his choreography in the How Long Video.
The Copyright Office approved the application, and the
choreography was registered as a choreographic work on
February 20, 2021 (hereinafter, the “Registered
Choreography”). The registration is limited to the
choreography in the video, not the music or audiovisual
elements.
3
A video of the “It’s Complicated” emote, as performed by an avatar in
Fortnite’s marketplace, is available online. See Insane broz, It’s
Complicated Emote | Fortnite – Battle Royale, YouTube (Mar. 31,
2020), https://www.youtube.com/watch?v=ye8BYIzPxgQ
[https://perma.cc/W55A-K88L].
4
Hanagami’s counsel prepared a side-by-side video of the allegedly
copied counts from Hanagami’s choreography and Epic’s emote. See
David Hecht, Fortnite Infringement of Kyle Hanagami Choreography,
YouTube (Mar. 28, 2022),
https://www.youtube.com/watch?v=vXYDr9o_FJY
[https://perma.cc/8956-5LJJ].
HANAGAMI V. EPIC GAMES, INC. 9
B.
In this action, Hanagami alleges that Epic’s “It’s
Complicated” emote infringes Hanagami’s Registered
Choreography. Relevant to this appeal, Hanagami brings
claims for direct copyright infringement and contributory
copyright infringement. 5 Epic moved to dismiss, arguing
that Hanagami failed to state a copyright claim because the
allegedly copied dance steps were not protectable and the
works were not substantially similar.
The district court granted Epic’s motion to dismiss.
Addressing Hanagami’s copyright claims, the court first
found that choreography is composed of “a number of
individual poses” that are not protectable “when viewed in
isolation.” The court determined that the overall “steps”
Epic allegedly copied—which the court described as “a two-
second combination of eight bodily movements, set to four
beats of music”—were not protectable under the Copyright
Act because they were only a “small component” of
Hanagami’s work. Relying on guidance from the United
States Copyright Office, the court reasoned that there exists
a “continuum between copyrightable choreography and
uncopyrightable dance.” See U.S. Copyright Office,
Compendium of U.S. Copyright Office Practices § 805.1 (3d
ed. 2021) (Compendium) (advising that “social dance steps
and simple routines” are not copyrightable). 6 The court,
having concluded that the dance steps were not protectable
on their own, then concluded that Hanagami was entitled to
5
Hanagami also brought an unfair competition claim under California
Business and Professions Code § 17200, et seq. The district court
dismissed that claim, and Hanagami does not appeal that ruling.
6
All subsequent textual references to the Compendium are to the third
edition, except where otherwise noted.
10 HANAGAMI V. EPIC GAMES, INC.
protection “only for the way the Steps are expressed in his
Registered Choreography” as a whole, “i.e., in the entire
five-minute work.”
The court proceeded to evaluate the similarities between
the Registered Choreography as a whole and the emote. The
court determined that “[t]he two works contain a series of
different poses performed in different settings and by
different types of performers” and that Hanagami had
identified “no other similar creative elements” between
them, apart from the unprotected poses. Concluding that the
works were not substantially similar as a matter of law, the
court dismissed Hanagami’s copyright claims.
II.
We review de novo a district court’s dismissal for failure
to state a claim pursuant to Federal Rule of Civil Procedure
Rule 12(b)(6). See Wilson v. Lynch, 835 F.3d 1083, 1090
(9th Cir. 2016). When reviewing the complaint, we take all
allegations of material fact as true “and decide whether the
complaint articulates ‘enough facts to state a claim to relief
that is plausible on its face.’” Starz Ent., LLC v. MGM
Domestic Television Distrib., LLC, 39 F.4th 1236, 1239 (9th
Cir. 2022) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
III.
We begin by discussing the history of copyright
protection for choreographic works. We then turn to
Hanagami’s claims.
A.
The 1976 Copyright Act was the first federal copyright
statute to provide express protection for “choreographic
HANAGAMI V. EPIC GAMES, INC. 11
works.” 17 U.S.C. § 102(a)(4); Horgan v. Macmillan, Inc.,
789 F.2d 157, 160 (2d Cir. 1986). The Act was a significant
departure from its predecessor, the 1909 Copyright Act.
Under the 1909 Act, choreographers were only permitted to
register their works under the subject of “dramatic
composition,” which required that the dance “depict some
story or emotion.” Barbara A. Singer, In Search of Adequate
Protection for Choreographic Works: Legislative and
Judicial Alternatives vs. the Custom of the Dance
Community, 38 U. Mia. L. Rev. 287, 298 (1984). By limiting
eligibility to dramatic works, the 1909 Act effectively
excluded abstract and non-literary choreography from
copyright protection.
Over the years, there were numerous proposals to amend
the 1909 Act to provide broader protections for
choreography, but none were successful. Horgan, 789 F.2d
at 160. In 1961, the Copyright Office took heed of the issue.
It submitted a report to Congress suggesting a revision to the
1909 Act to protect abstract forms of choreography,
explaining that there was “no reason why an ‘abstract’
dance, as an original creation of a choreographer’s
authorship, should not be protected as fully as a traditional
ballet presenting a story or theme.” Copyright Law
Revision: Rep. of the Register of Copyrights on the General
Revision of the U.S. Copyright Law, 87th Cong., 1st Sess.,
17 (H. Judiciary Comm. Print 1961). The report
recommended that Congress create a separate category for
choreographic works within the statute. Id.
Congress followed that recommendation and when it
enacted the 1976 Act, it codified “choreographic works” as
one of the “original works of authorship” subject to
copyright protection. 17 U.S.C. § 102(a)(4). With this
change, choreography finally “achieved legal recognition as
12 HANAGAMI V. EPIC GAMES, INC.
a separate, viable form of art.” 7 Singer, supra, at 288–89.
Choreographers thus have “exclusive rights” to “reproduce
the copyrighted work in copies,” “prepare derivative works,”
“distribute copies” of the work “by sale,” “perform the
copyrighted work publicly,” and “display the copyrighted
work publicly.” 17 U.S.C. § 106(1)–(5); see also Horgan,
789 F.2d at 161.
The Act, however, does not define the term
“choreography,” and Congress left little clue about what it
might mean. See Bikram’s Yoga Coll. of India, L.P. v.
Evolation Yoga, LLC, 803 F.3d 1032, 1043 (9th Cir. 2015).
Indeed, Congress considered the term “choreographic
work[]” to have a “fairly settled” meaning. Id. (citing H.R.
Rep. No. 94-1476, at 53 (1976)). On this point, the
legislative history explains that Congress found it
unnecessary to “specify that ‘choreographic works’ do not
include social dance steps and simple routines.” Id. (citing
H.R. Rep. No. 94-1476, at 53–54 (1976)).
Although more than forty years have passed since the
1976 Act’s enactment, few courts have addressed federal
copyright protections for choreographic works. See
Bikram’s Yoga Coll. of India, 803 F.3d at 1043 (agreeing
that copyright protection for choreography remains “an
uncharted area of the law”) (quoting Horgan, 789 F.2d at
160)). The most famous case in this area is Horgan v.
Macmillan, Inc., in which the Second Circuit considered
whether photographs of a ballet could infringe the copyright
on the choreography of the ballet. 789 F.2d at 158. In that
case, Macmillan published a book of color photographs of
the New York City Ballet Company’s production of The
7
For additional background on the history of statutory protections for
choreography, see Horgan, 789 F.2d at 161.
HANAGAMI V. EPIC GAMES, INC. 13
Nutcracker. Id. at 158–59. The book portrayed, through text
and photos, the story and history of The Nutcracker ballet.
Id. The estate of George Balanchine, who famously
choreographed the production, sued for copyright
infringement. Id. at 158. The district court found that
Macmillan had not infringed the copyright for the ballet
because the photographs did not capture “the flow” of the
dancer’s steps and “[t]he staged performance could not be
recreated” from the photographs. Id. at 160.
On appeal, the Second Circuit reversed and remanded,
concluding that the district court erroneously held that still
photographs could not infringe a choreographic work. Id. at
162–63. To reach this conclusion, the Second Circuit looked
to the Compendium of U.S. Copyright Office Practices
(“Compendium II”) as persuasive authority. 8 Id. at 161–62.
Notably, the Second Circuit quoted the definition of
“choreography” in the Compendium II, which described the
term as “the composition and arrangement of dance
movements and patterns.” Id. at 161 (quoting U.S.
Copyright Office, Compendium of U.S. Copyright Office
Practices § 450.01 (2d ed. 1984) (Compendium II)). 9
8
The Compendium is a manual published by the Copyright Office. It
provides instruction to agency staff and guidance to the general public
on the Copyright Office’s requirements, regulations, and legal
interpretations. See Compendium, Introduction, at 1.
9
The Second Circuit addressed another choreography copyright claim in
Martha Graham School & Dance Found., Inc. v. Martha Graham Center
of Contemporary Dance, Inc., 466 F.3d 97 (2d Cir. 2006). There, the
court considered a dispute over which entity was the rightful owner of
choreographic works produced by the famous dancer Martha Graham.
Id. at 99. The court held that there was sufficient evidence to establish
that Graham had assigned copyrights to the dances to her foundation, but
it did not reach the underlying question of copyright infringement, nor
14 HANAGAMI V. EPIC GAMES, INC.
We also briefly addressed the subject of choreography in
Bikram’s Yoga College of India. 803 F.3d at 1043. There,
we considered whether a sequence of yoga poses could be
subject to copyright protection as a choreographic work. Id.
We held that the yoga sequence was not copyrightable as a
choreographic work because it was “an idea, process, or
system to which copyright protection may ‘[i]n no case’
extend.” Id. at 1043–44 (citing 17 U.S.C. § 102(b)).
Although we cited the Compendium II in our reasoning, we
explained that we did not need to decide “whether to adopt
the Copyright Office’s definition of ‘choreographic work’ or
fashion another on our own” because “[e]ven if the
[s]equence could fit within some colloquial definitions of
dance or choreography, it [would] remain[] a process
ineligible for copyright protection.” Id. at 1044.
Today, we adopt the Compendium’s definitions of
“choreography” and “dance.” 10 The Compendium defines
choreography as “the composition and arrangement of a
related series of dance movements and patterns organized
into a coherent whole.” Compendium § 805.1 (internal
quotations and citations omitted). It defines dance as the
“static and kinetic succession[] of bodily movement in
certain rhythmic and spatial relationships.” Id. § 805.4(A)
(quoting Horgan, 789 F.2d at 161). Under these definitions,
“choreography is a subset of dance,” but the two terms are
“not synonymous.” Id. §§ 805.5(B)(3), 805.1. The
did it elaborate on the definition or characteristics of a choreographic
work. See id. at 99–100.
10
Although we are not bound by the Compendium, we defer to the
Copyright Office when its interpretation of a term has the “power to
persuade.” See Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038,
1042 (9th Cir. 2014), as amended (July 9, 2014) (quoting Christensen v.
Harris Cnty., 529 U.S. 576, 587 (2000)).
HANAGAMI V. EPIC GAMES, INC. 15
Compendium outlines several elements that choreographic
works typically contain, “although the presence or absence
of a given element is not determinative of whether a
particular dance constitutes choreography.” Id. § 805.2.
These features include “rhythmic movement in a defined
space,” “compositional arrangement,” “musical or textual
accompaniment,” “dramatic content,” “presentation before
an audience,” and “execution by skilled performers.” Id.
§ 805.2(A)–(F) (cleaned up).
The Compendium does not draw a bright line distinction
between copyrightable choreography and uncopyrightable
dance; instead, there is a continuum on which “[m]any works
fall somewhere in between.” Id. § 805.5(B). Still, there are
limitations on what types of movements are copyrightable as
choreography. “Individual movements or dance steps by
themselves are not copyrightable, such as the basic waltz
step, the hustle step, the grapevine, or the second position in
classical ballet.” Id. § 805.5(A). Nor will the Copyright
Office register “short dance routines consisting of only a few
movements or steps with minor linear or spatial variations,
even if the routine is novel or distinctive.” Id. Individual
dance elements “are not copyrightable for the same reason
that individual words, numbers, notes, colors, or shapes are
not protected”—they are the “building blocks of
choreographic expression” from which all choreographic
works are built. Id.
B.
With this background in mind, we turn to Hanagami’s
claims against Epic. To state a claim for copyright
infringement against Epic, Hanagami must show that (1) he
owns a valid copyright in his choreography, and (2) Epic
copied protected aspects of his work. Feist Publ’ns, Inc. v.
16 HANAGAMI V. EPIC GAMES, INC.
Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Hanagami’s
ownership of a valid copyright is not challenged on appeal,
so we do not address the first prong.
To demonstrate the second prong—that Epic copied
protected aspects of Hanagami’s work—Hanagami must
plausibly allege both (1) copying and (2) unlawful
appropriation. Rentmeester v. Nike, Inc., 883 F.3d 1111,
1117 (9th Cir. 2018), overruled in part by Skidmore v.
Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc). A
plaintiff can demonstrate copying “by showing that the
defendant had access to the plaintiff’s work and that the two
works share similarities probative of copying.” Id.
“Similarities probative of copying” include similarities that
are more likely attributable to copying, rather than
“coincidence, independent creation, or prior common
source.” Skidmore, 952 F.3d at 1064 (first quoting
Rentmeester, 883 F.3d at 1117; and then quoting Bernal v.
Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043,
1052 (C.D. Cal. 2010)). Copying does not require
demonstrating a high degree of similarity; the plaintiff need
only show that there are “similarities one would not expect
to arise if the two works had been created independently.”
Rentmeester, 883 F.3d at 1117. Here, it is undisputed that
Hanagami plausibly alleged the “copying” component of his
claim.
Unlawful appropriation is different. Plaintiffs must
demonstrate that the works share substantial similarities.
Skidmore, 952 F.3d at 1064. We require a showing of
unlawful appropriation because the Act does not forbid
copying writ large. Copyright, rooted in Congress’s power
to “promote the Progress of Science and useful Arts,” U.S.
Const. art. I § 8, cl. 8, exists to “encourage[] others to build
freely upon the ideas and information conveyed by a work.”
HANAGAMI V. EPIC GAMES, INC. 17
Feist, 499 U.S. at 349. Copyright protection thus only
covers an artist’s expression, not the idea underlying that
expression. See id.; see also 17 U.S.C. § 102(b) (stating that
copyright protection does not “extend to any idea, procedure,
process, system, method of operation, concept, principle or
discovery”). Accordingly, a defendant cannot be held liable
for copying only “ideas” or “concepts” from a plaintiff’s
work. Instead, to be liable for copyright infringement, a
defendant “must . . . copy enough of the plaintiff’s
expression of those ideas or concepts to render the two works
‘substantially similar.’” Rentmeester, 883 F.3d at 1119
(quoting Mattel, Inc. v. MGA Ent., Inc., 616 F.3d 904, 913–
14 (9th Cir. 2010)).
Our circuit uses a two-part test to assess substantial
similarity. The first part, known as the “extrinsic test,”
“assesses the objective similarities of the two works,
focusing only on the protectable elements of the plaintiff’s
expression.” Rentmeester, 883 F.3d. at 1118 (citing
Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.
2002)). The second part, referred to as the “intrinsic test,”
“test[s] for similarity of expression from the standpoint of
the ordinary reasonable observer, with no expert assistance.”
Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 637 (9th Cir.
2008) (quoting Apple Computer, Inc. v. Microsoft Corp., 35
F.3d 1435, 1442 (9th Cir.1994)). District courts apply only
the extrinsic test at the pleadings stage, “as the intrinsic test
is reserved exclusively for the trier of fact.” Williams v.
Gaye, 895 F.3d 1106, 1119 (9th Cir. 2018). The district
court’s application of the extrinsic test is the primary issue
on appeal.
18 HANAGAMI V. EPIC GAMES, INC.
1. Substantial Similarity
Hanagami argues the district court erred in its application
of the extrinsic test when it determined that the Registered
Choreography and the “It’s Complicated” emote were not
substantially similar. He first challenges the court’s process
for determining the protectable and unprotectable elements
of his choreography. The court concluded that choreography
is composed of “a number of individual poses” that are
unprotectable when viewed in isolation. The court also ruled
that the collection of “steps” Epic allegedly copied—a two-
second combination of eight bodily movements, set to four
beats of music, performed ten times throughout the five-
minute registered work—were unprotectable as a whole.
Hanagami challenges the conceptual approach of reducing
choreography to “poses,” arguing that choreography is much
more than a “static collection of poses,” and that the court
failed to consider many other “expressive elements of [the]
choreography.”
We agree with Hanagami. 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. We reverse and remand
to the district court on this basis.
a. The district court erred in analyzing the elements of
choreography.
To apply the extrinsic test, courts must first distinguish
between protectable and unprotectable elements, and “ask
only whether the protect[a]ble elements in two works are
substantially similar.” L.A. Printex Indus. Inc. v.
Aeropostale, Inc., 676 F.3d 841, 849 (9th Cir. 2012). This
process is referred to as “filtering.” See, e.g., Williams, 895
F.3d at 1117. But we have long recognized that “[c]ertain
HANAGAMI V. EPIC GAMES, INC. 19
types of works can be dissected into protected and
unprotected elements more readily than others.”
Rentmeester, 883 F.3d at 1119. For example, a photograph
cannot be easily broken down into protected and unprotected
elements because none of the “various creative choices the
photographer made in composing the image—choices
related to subject matter, pose, lighting, camera angle, depth
of field, and the like” would receive “copyright protection
when viewed in isolation.” Id. at 1119.
To account for this, we also employ a “selection and
arrangement” approach to assess substantial similarity. This
approach protects the “particular way in which the artistic
elements form a coherent pattern, synthesis, or design.”11
Skidmore, 952 F.3d at 1074; see Swirsky v. Carey, 376 F.3d
841, 848 (9th Cir. 2004) (“[A] substantial similarity can be
found in a combination of elements, even if those elements
are individually unprotected.”).
Like other forms of copyrightable material,
choreography is composed of various elements that are
unprotectable when viewed in isolation. An individual,
stand-alone dance movement, such as a plie, is equivalent to
an “idea” that is not protectable by copyright. As a result,
subsequent choreographers can use the same individual
movements to produce new choreographic works of their
own, as long as the new compositions are not substantially
similar to the copyrighted work. Similarly, a choreographer
11
“Filtering” and “selection and arrangement” are not truly distinct tests;
they are different ways of evaluating whether a particular work infringed
upon protected expression. See Skidmore, 952 F.3d at 1074. One
appears to gauge whether protected elements of a work were unlawfully
copied, while the other addresses whether a protected expression, as a
whole, was unlawfully copied. See id.
20 HANAGAMI V. EPIC GAMES, INC.
cannot claim protection over the use of tempo, transitions, or
rhythm in a choreographic work. The uncopyrightable
elements of a dance instead function as “the building blocks
for a choreographer’s expression, in much the same way that
words and short phrases provide the basic material for
writers.” Compendium § 805.4(D).
What is protectable is the choreographer’s “selection and
arrangement of the [work’s] otherwise unprotected
elements.” Cf. Rentmeester, 883 F.3d at 1120 (determining
copyrightability of a photograph). Thus, while individual
dance movements may not receive protection, their
“[o]riginal selection, coordination, and arrangement . . . may
be protect[a]ble expression.” See L.A. Printex, 676 F.3d at
849 (determining copyrightability of a floral textile design).
Again, this approach is consistent with copyright in other
contexts. See Metcalf v. Bocho, 294 F.3d 1069, 1074 (9th
Cir. 2002) (explaining that individual musical notes are not
protected but their arrangement may be), overruled on other
grounds by Skidmore, 952 F.3d at 1051; Rentmeester, 883
F.3d at 1120 (explaining that individual elements of a
photograph are not protected but their combined selection
and arrangement may be).
We do not, however, have a “well-defined standard for
assessing when similarity in selection and arrangement
becomes ‘substantial,’” largely because it is a fact-driven
and context-dependent inquiry. Rentmeester, 883 F.3d at
1121. We have suggested generally that the “selection and
arrangement of elements must be similar enough that ‘the
ordinary observer, unless he set out to detect the disparities,
would be disposed to overlook them.’” Id. (citing Peter Pan
Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d
Cir. 1960)).
HANAGAMI V. EPIC GAMES, INC. 21
The district court correctly recognized that choreography
falls within a selection-and-arrangement framework, but it
erred at the first step of that analysis: breaking down the
elements of the choreographic works. Identifying the
elements of choreographic works is admittedly not an easy
task, and there is little guidance for courts in this context.
“[N]either the Copyright Act nor the Copyright Office’s
regulations clearly specify what constitutes the expressive
element of a choreographic work.” Joi Michelle Lakes, A
Pas de Deux for Choreography and Copyright, 80 N.Y.U. L.
Rev. 1829, 1841 (2005). Consequently, it is “unclear when
a work moves from public domain steps to copyrightable
expressive choreography.” Id. at 1847.
We nonetheless agree with Hanagami that “poses” are
not the only relevant element underlying a choreographic
work. Hanagami persuasively argues that there are several
other “expressive element[s] present in choreography,”
including “body position, body shape, body actions,
transitions, use of space, timing, pauses, energy, canon,
motif, contrast, [and] repetition.” These more discrete and
technical elements are conceptually similar to elements we
recognize in other copyright contexts, particularly the field
of music.
In music copyright cases, we routinely dissect and
analyze many musical elements, including “melody,
harmony, rhythm, pitch, tempo, phrasing, structure, chord
progressions, and lyrics.” Swirsky, 376 F.3d at 849
(collecting cases across circuits analyzing different elements
of musical compositions). In Skidmore, for example, we
considered a plaintiff’s allegations that the song Stairway to
Heaven copied a combination of five musical elements from
the plaintiff’s work: minor chromatic line and associated
chords; duration of pitches of minor chromatic line; melody
22 HANAGAMI V. EPIC GAMES, INC.
placed over the descending chromatic line consisting of
combination of arpeggios and two-note sequences; rhythm
of steady eighth note beats; and pitch collection. Skidmore,
952 F.3d at 1074. And in Williams, we assessed the
combined presence of eight musical elements that plaintiffs
claimed rendered the two songs substantially similar. 895
F.3d at 1117–18 (assessing alleged similarities between two
songs, including the bass lines, keyboard parts, signature
phrases, hooks, “Theme X,” bass melodies, word painting,
and placement of the rap and “parlando” sections in the two
songs); see also Three Boys Music Corp. v. Bolton, 212 F.3d
477, 485 (9th Cir. 2000) (assessing five musical elements),
overruled on other grounds by Skidmore, 952 F.3d at 1051.
In fact, we have held that it would be error for a district court
to “disregard chord progression, key, tempo, rhythm, and
genre” when assessing a musical chorus because “no
approach can completely divorce pitch sequence and rhythm
from harmonic chord progression, tempo, and key, and
therefore support a conclusion that compositions are
dissimilar as a matter of law.” Swirsky, 376 F.3d at 848.
We see no reason to treat choreography differently. To
analogize from music to dance, reducing choreography to
“poses” would be akin to reducing music to just “notes.”
Choreography 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
element of “poses,” on its own, is simply not dynamic
enough to capture the full range of creative expression of a
choreographic work.
In holding that elements beyond mere poses can exist,
we do not suggest that the same elements will be present in
HANAGAMI V. EPIC GAMES, INC. 23
every choreographic work. Nor is it necessary to specify a
discrete universe of elements from which a choreographic
copyright infringement claim can be built. In music, “each
allegation of infringement [is] unique,” and “[t]here is no
one magical combination of . . . factors that will
automatically substantiate a . . . suit.” Swirsky, 376 F.3d at
849. The same is true for choreography. Choreographic
works could plausibly contain multiple unique elements, and
those elements can and will change depending on the work
in question. 12 The task for courts, then, is to compare the
selection and arrangement of elements in the registered
choreographic work with that in the allegedly infringing
work. At the motion-to-dismiss stage, the court must only
consider whether the plaintiff has plausibly alleged that the
two works share substantial similarities.
In this case, Hanagami alleged that Epic copied several
elements of his choreography, most of which cannot be
captured by reviewing static poses. He alleged that Epic
copied “without limitation, the footwork, movement of the
limbs, movement of the hands and fingers, and head and
shoulder movement covered by the Registered
Choreography.” He averred that “the tempo is the same in
both the Registered Choreography and the emote.”
Hanagami also argued that the works contain at least eight
of the same “body shapes/positions” and share the same
12
We note, however, that the district court’s reduction of choreography
to “poses” was particularly problematic because choreography is tied
closely to movement. Static poses cannot possibly capture the flow of
movement that is integral to choreography as a form of art. See Lakes,
supra, at 1848 (noting that “movement itself is the choreographer’s
means of expression . . . inher[ing] in how the choreographer progresses
the dancers from position to position, not necessarily in the mere order
of the positions themselves”).
24 HANAGAMI V. EPIC GAMES, INC.
“pathways/transitions.” The district court erred by ignoring
these elements in its application of the substantial similarity
test.
Because the district court failed to assess the discrete
combination of elements of the Registered Choreography, it
erred in deciding as a matter of law at the motion-to-dismiss
stage that the two works were not substantially similar.
Taking the allegations in Hanagami’s complaint as true, he
has plausibly alleged substantial similarity under the
extrinsic test. Specifically, he has plausibly alleged that the
creative choices he made in selecting and arranging elements
of the choreography—the movement of the limbs,
movement of the hands and fingers, head and shoulder
movement, and tempo—are substantially similar to the
choices Epic made in creating the emote. A plaintiff need
not set forth detailed factual allegations about the elements
of choreography to survive a motion to dismiss. See Malibu
Textiles, Inc. v. Label Lane Int’l, Inc., 922 F.3d 946, 951 (9th
Cir. 2019). The facts alleged in the complaint must simply
“‘be enough to raise a right to relief above the speculative
level’ and to ‘state a claim to relief that is plausible on its
face.’” Id. at 951 (citing Bell Atl. Corp., 550 U.S. at 555,
570). Hanagami met this burden.
Indeed, it is generally disfavored for copyright claims to
be dismissed for lack of substantial similarity at the pleading
stage. In many cases, “[a]pplication of ‘[t]he extrinsic test
requires analytical dissection of a work and expert
testimony’” because most judges are not sufficiently trained
in the specifics of the art form at issue to make reliable
conclusions about similarity. Williams, 895 F.3d at 1119
(quoting Swirsky, 376 F.3d at 845). This does not mean all
copyright claims must proceed through discovery to receive
a fair shake. We have occasionally affirmed the dismissal of
HANAGAMI V. EPIC GAMES, INC. 25
copyright infringement claims under Rule 12(b)(6) when
“nothing disclosed during discovery” could change the
court’s conclusion that the works are not substantially
similar. Rentmeester, 883 F.3d at 1123. Likewise, some
works are so dissimilar by plain sight that any person
observing them could confidently conclude that they do not
share substantial similarities.
This is not such a case. Hanagami has plausibly alleged
substantial similarity, and the district court erred in
dismissing his claims on the grounds provided. We reverse
and remand for further proceedings consistent with this
opinion.
b. The district court erred in dismissing Hanagami’s
claim because the choreography was “short” and a
“small component” of Hanagami’s overall work.
In addition to deciding that the poses in Hanagami’s
choreography were unprotectable, the district court also
reasoned that Hanagami could not claim protection over the
allegedly copied “Steps” as a whole, which the court defined
as “two seconds, four beats of music, or eight body positions,
repeated ten times throughout the registered choreography.”
In so holding, the district court reasoned that the Copyright
Office would be unlikely to register the Steps as a discrete
work. The court emphasized that the four-count segment
was not protectable because it comprised only a “small
component” of Hanagami’s overall five-minute routine and
was closer to an uncopyrightable “short” dance routine. We
reject this conclusion for several reasons.
First, “no bright line rule exists as to what quantum of
similarity is permitted before crossing into the realm of
substantial similarity.” Baxter v. MCA, Inc., 812 F.2d 421,
425 (9th Cir. 1987). That means that, “[e]ven if a copied
26 HANAGAMI V. EPIC GAMES, INC.
portion be relatively small in proportion to the entire work,
if qualitatively important, the finder of fact may properly
find substantial similarity.” Id.; see also 4 Nimmer on
Copyright § 13.03 (2023). In the music copyright context,
“an arrangement of a limited number of notes can garner
copyright protection.” Swirsky, 376 F.3d at 851 (holding
that seven notes of the first measure of a song’s chorus were
sufficient to find substantial similarity). In Skidmore v.
Zeppelin, for example, we held it was a jury question
whether the opening notes of Stairway to Heaven were
substantially similar to an eight-measure passage of the song
Taurus. Skidmore, 952 F.3d at 1059; see also Baxter, 812
F.2d at 425 (rejecting the argument that a six-note sequence
of a song would be unprotectable as a matter of law);
Horgan, 789 F.2d at 162–63 (collecting Second Circuit cases
in which copyright infringement was found based on a small
amount of copied material).
To be sure, copying that is de minimis is not actionable.
4 Nimmer on Copyright § 13.03 (2023). In the literary
realm, copying one sentence of a plaintiff’s work is
ordinarily de minimis. Id. And in the context of music
copyright, it is safe to say that “a similarity limited to a single
note never suffices.” Id.; see also Skidmore, 952 F.3d at
1059 (noting that we have never found similarity based on a
three-note selection or “a four-note sequence common in the
musical field”).
Nevertheless, the proper inquiry does not turn on the
mere length of the copied material. See 4 Nimmer on
Copyright § 13.03 (2023). “The question in each case is
whether the similarity relates to matter that constitutes a
substantial portion of plaintiff’s work,” which is an
“evaluation [that] must occur in the context of each case,
both qualitatively and quantitatively.” Id. If the copied
HANAGAMI V. EPIC GAMES, INC. 27
portion is deemed significant, then the defendant cannot
avoid liability simply because it is short. Id. (rejecting the
oft-repeated maxim that copying three bars from a musical
work could never constitute infringement). Moreover, Epic
does not argue that the alleged copying is de minimis.
The district court erred by ruling that, as a matter of law,
the Steps are unprotectable because they are relatively brief.
Hanagami has more than plausibly alleged that the four-
count portion has substantial qualitative significance to the
overall Registered Choreography. The four counts in
question are repeated eight times throughout the Registered
Choreography, corresponding to the chorus and titular lyrics
of the accompanying song. Hanagami alleges that the
segment is the most recognizable and distinctive portion of
his work, similar to the chorus of a song. See Swirsky, 376
F.3d at 851. Whether or not a jury would ultimately find the
copied portion to be qualitatively significant is a question for
another day. We conclude only that the district court erred
in dismissing Hanagami’s copyright claim on the basis that
Epic allegedly infringed only a relatively small amount of
the Registered Choreography.
Second, we are not convinced that the four-count
segment is a “simple routine,” as the district court implied.
It is true that Congress indicated that simple routines do not
warrant copyright protection. See H.R. Rep. No 94-1476, at
53–54 (1976). And the Copyright Office advises that it
“cannot register a claim to copyright in social dances or
simple routines.” Compendium § 805.5(B). But here,
Hanagami plausibly alleged that the Steps are more than “a
few movements . . . with minor linear or spatial variations.”
Short does not always equate to simple. Beyond the
relatively brief duration of the copied steps, there is no
evidence to suggest that the choreography is simple. It
28 HANAGAMI V. EPIC GAMES, INC.
appears that the allegedly copied portion is far more complex
than other routines the Copyright Office has deemed
uncopyrightable, like a “celebratory dance in the endzone”
consisting of “a few movements of the legs, shoulders and
arms,” or the gesture of using one’s arms to spell out the
letters “USA.” Compendium § 805.5(A). And there is no
indication that the segment of choreography is an “adapted
social dance” or a dance designed to be performed by the
public. Hanagami plausibly alleged that the four-count
portion is a complex, fast-paced series of patterns and
movements that involves the whole body and is performed
by highly-trained dancers. Even without the rest of the
Registered Choreography, the Steps alone could satisfy
many of the elements of a choreographic work as defined in
the Compendium. See Compendium § 805.2(A)–(F). 13 In
any event, it is not up to us at this stage of the litigation to
determine the complexity of the Steps. Further discovery
and expert testimony may shed more light on this question.
Epic also urges us to defer to past decisions from the
Copyright Office and consider whether Hanagami could
receive a copyright for the four-count segment of
choreography, standing alone. We recognize that the
Copyright Office must make discretionary decisions about
the length and complexity of choreography that can be
copyrighted, taking care to leave the “building blocks” of
choreographic expression in the public domain.
Copyrightable choreography and uncopyrightable dance
13
As noted above, the Compendium suggests that choreographic works
typically contain one or more of the following elements: rhythmic
movement in a defined space, compositional arrangement, musical or
textual accompaniment, dramatic content, presentation before an
audience, and execution by skilled performers. See supra Section A.
There may also be other relevant elements.
HANAGAMI V. EPIC GAMES, INC. 29
exist on a continuum, on which the four-count portion of
Hanagami’s choreography may well fall somewhere in the
middle. See Compendium § 805.5(B)(1).
But the 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. Even if the Copyright Office
would not issue a copyright for the allegedly copied material
alone, that would not automatically defeat Hanagami’s
copyright claim.
2. Thin vs. Broad Copyright Protection
Hanagami raises a final issue on appeal. Up to this point,
we have simply assumed that the “substantial similarity”
standard applies in comparing Hanagami’s choreography
and Epic’s emote, following the district court’s analysis and
the parties’ briefing. But the standard for demonstrating
similarity varies depending on whether the work in question
is entitled to “thin” or “broad” copyright protection. If a
work contains only a narrow range of possible expression
and a limited range of creative choices, then it has “thin”
copyright protection, and infringement occurs only if
another work is “virtually identical” to it. Mattel, 616 F.3d
at 913–14. On the other hand, for a work that enjoys a wide
range of possible expression and broad creative choices, the
work merits “broad” copyright protection, and a work will
infringe if it is “substantially similar” to the subject work.
Id. at 914. A court must decide whether a work has “thin”
or “broad” copyright protection to determine the degree of
similarity that must be proven. “The standard for
infringement—substantially similar or virtually identical—
30 HANAGAMI V. EPIC GAMES, INC.
determined at the ‘extrinsic’ stage is applied at the ‘intrinsic’
stage.” Id.
Our caselaw illustrates this point more aptly. Because
“there are gazillions of ways to make an aliens-attack
movie,” copyright protection for such a movie would be
“broad.” Id. at 913–14. A highly stylized photograph of
Michael Jordan on a grassy knoll dunking a basketball in a
grand jete pose similarly received broad protection because
there were a “much wider range of creative choices available
in producing it.” Rentmeester, 883 F.3d at 1120. In contrast,
“there are only so many ways to paint a red bouncy ball on
blank canvas,” so copyright protection for that image would
be “thin.” Id. at 914. Similarly, commercial photo shots of
a vodka bottle received thin protection because there are few
creative choices the photographer could make in crafting
such an image. See Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d
763, 766 (9th Cir. 2003).
Hanagami argues the district court erred in suggesting
that choreographic works are entitled to only “thin”
protection. We do not read the district court’s decision in
such a manner. Although the district court did not state that
Hanagami’s choreography received “broad” protection,
“[b]y adopting the ‘substantially similar’ standard, the
district court afforded” it broad protection. Mattel, 616 F.3d
at 914. Nonetheless, Hanagami urges us to go a step further
and hold that choreographic works are always subject to
broad protection because of the wide range of creative
choices available to a choreographer in composing a work.
We decline to do so. We do not address the thin versus
broad copyright protection issue, either with respect to
Hanagami’s claim or to choreography more broadly.
Because we remand this case for further proceedings, the
HANAGAMI V. EPIC GAMES, INC. 31
district court will have a better opportunity to assess the
appropriate level of copyright protection for Hanagami’s
claim with the benefit of a more complete record. At the
next stage of proceedings, the court may decide whether thin
or broad copyright protection applies in the first instance.
CONCLUSION
For the foregoing reasons, we reverse the district court’s
dismissal of Hanagami’s copyright claims against Epic. We
remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.