Copyright In Choreographic Work With Special Attention To The Hanagami Vs Fortnite Case




Dance is considered one of the earliest forms of human expression, it remains largely unexplored in terms of its recognition as a copyrightable subject matter within the realm of copyright laws. Indian laws, mainly, the Copyright Act of 1957, though recognises “choreographic work” under the realm of “dramatic works”, it does not recognise it at a distinct art form altogether, meaning that choreographers are only permitted to register works under the subject of “dramatic works”, which requires that the dance “depict some emotion”. This position of codification of choreographic works under the present Indian laws is similar to the United States’ until the US Congress departed from it in 1976. By limiting the eligibility of choreographic works to dramatic works, the law effectively excludes abstract and non-literary choreography from copyright protection.

In a recent case between Kyle Hanagami (a famous choreographer) versus Epic Games (video game makers, famous for their game “Fortnite”) at the United States Courts of Appeals for the Ninth Circuit, the court marked a significant shift in the realm of copyright in choreographic works by recognizing dance copyrights more akin to musical compositions.

As a part of the game (Fortnite), players can purchase virtual animations, known as an “emote,” depicting portions of the registered choreography. Hanagami alleged that Epic released an emote called “It’s Complicated” that copies a distinct, four-count portion of his choreographic work from the video titled “Charlie Puth – How Long | Kyle Hanagami Choreography”, which works are registered with the US Copyright Office. The district court sided with Epic, ruling in favor of dismissing Hanagami’s copyright claims. The basis for the dismissal was Hanagami’s failure to convincingly assert that Epic’s emote closely resembled his registered choreography. The court determined, as a matter of legal interpretation, that Hanagami did not have protection for the individual “poses” within the choreography. Furthermore, it reasoned that the portion of the choreography allegedly copied was akin to an uncopyrightable “short” routine and constituted only a “small component” of Hanagami’s overall choreography. Upon comparing Hanagami’s registered choreography with Epic’s emote, the district court found no significant similarity between the two works. Hanagami appealed to the Ninth Circuit.

To claim infringement in his copyright work, Hanagami was to prove his ownership of copyright in the choreography and the fact the Epic copied protected aspects of his work. It is important to note that individual dance elements are not copyrightable for the same reason that individual words, numbers, notes, colours, or shapes are not protected, they are the “building blocks of choreographic expression” from which all choreographic works are built. Since Hanagami’s ownership was not challenged in this appeal, the court progressed with analysing whether Epic copied a protected aspect of Hanagami’s work. In the present case, the court held that Hanagami’s had allegation of “copying” as a component of the infringement claim is undisputed as the emote and Hanagami’s works shared similarities probative of copying. Leading the case in proving the “unlawful appropriation” component of the claim. It is a settled principle in copyright law that copyright is not offered to an idea itself but the expression of the idea. For a claim 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”.

The court held that approach of the subordinate court to reduce a choreography to “poses” is fundamentally at odds with the way copyright claims are analysed for other art forms such as musical compositions.

The court employed a “selection and arrangement” approach to assess substantial similarity in the works. This approach protects the particular way in which the artistic elements form a coherent pattern, synthesis, or design. Similar to other types of copyrighted content, choreography consists of distinct components that lack protection when examined independently. For instance, a singular dance move, like a plié, represents an “idea” devoid of copyright safeguarding.

The court found no justification for treating choreography differently. It expressed the view that likening choreography to mere “poses” would be comparable to oversimplifying music to just “notes.” Choreography inherently entails a sequence of dance movements and patterns arranged cohesively. It is the interplay between these movements and patterns, as well as the choreographer’s imaginative process of composing and harmonizing them, that delineates the essence of the work. Isolating the element of “poses” fails to encompass the richness of creative expression inherent in choreographic works.

Hanagami presented a pivotal concern on appeal regarding the comparison between his choreography and Epic’s emote. The determination of similarity hinges on whether the work is entitled to “thin” or “broad” copyright protection, with the former requiring works to be “virtually identical” and the latter considering them “substantially similar.” This distinction is crucial, as it dictates the degree of similarity necessary to establish infringement. The intrinsic stage of evaluation applies the standard established at the extrinsic stage. Several case laws provide clarity on this matter, illustrating that works with a broad range of creative choices, such as stylized photographs or movies with numerous narrative possibilities, merit broad protection. Conversely, works with limited creative options, like certain commercial photographs, are afforded thin protection. While Hanagami contends that choreographic works should universally receive broad protection due to their creative latitude, the court refrained from making a definitive ruling on this matter, deferring instead to subsequent proceedings for a thorough examination of the issue in light of a complete record.

While the court refrained from establishing specific guidelines, the Ninth Circuit’s decision emphasized that assessing the protectability of a segment within a choreographic piece is a nuanced inquiry, dependent on the particular facts of the case. This assessment necessitates a thorough examination of the specific dance movements employed, an understanding of the varied creative decisions made by the choreographer, and an evaluation of the copied elements within the broader context of the entire work. Regardless of the outcome upon reconsideration, the Ninth Circuit’s ruling offers valuable guidance for courts in determining the protectability of choreographic works.

As for the matter between Hanagami and Epic, the parties sought dismissal of the suit and have reportedly settled on undisclosed terms.

Authors: Lokesh Kansal and Malabika Boruah




Interns and Paralegals.


As per the rules of the Bar Council of India, we are not permitted to solicit work or advertise. By agreeing to access this website, the user acknowledges the following:

This website is meant only for providing information and does not purport to be exhaustive and updated in relation to the information contained herein. Naik Naik & Company will not be liable for any consequence of any action taken by the user relying on material / information provided on this website. Users are advised to seek independent legal counsel before proceeding to act on any information provided herein.