9th Circuit Urged to Protect Choreographer’s Work From ‘Advances of Technology’
The issue before the 9th U.S. Circuit Court of Appeals in choreographer Kyle Hanagami’s appeal (docket 22-55890) of a district court’s dismissal order “involves protecting an artist’s creative original work from the advances of technology,” said Hanagami’s attorney, David Hecht of Hecht Partners, in oral argument Wednesday.
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Hanagami alleges Epic Games “unceremoniously copied” for its Fortnite franchise the most recognizable part of one of his most well-known registered choreographic works, but the U.S. District Court for the Central District of California dismissed Hanagami’s complaint (see 2301310037). His appeal seeks the reversal of that dismissal.
The case is “particularly relevant, given the ongoing writers’ strike today,” said Hecht. “Under the district court precedent, no infringement of choreography could ever occur in short-form media, like TikTok and YouTube shorts and the like, which last seconds, not minutes,” he said.
No other court “has ever granted a motion to dismiss in a case involving infringement of choreography on grounds related to the substantial similarity test,” said Hecht. “Choreography is still a very new area to the law,” he said. “There’s not much precedent.” The district court’s dismissal “got it wrong” because it “misapplied the substantial similarity test” when it “ignored protectable elements” of Hanagami’s dance moves, he said.
But Epic’s attorney, Dale Cendali of Kirkland & Ellis, countered that Hanagami’s case “is about the legal distinction between choreographic works, which can be copyrightable, and simple dance routines, which are never copyrightable.” The 9th Circuit’s affirmation of the district court’s dismissal “is warranted, as plaintiff’s two seconds of steps are not a choreographic work,” she said. “Rather at best, they are a simple routine,” she said.
Congress made clear that simple routines “are not choreographic works” that can be protected, said Cendali. Neither the U.S. Copyright Office nor any court “has found a routine like this to be copyrightable, and for good reason,” she said.