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What is copyright?
Copyright is a legal mechanism designed to protect the original works of authors, artists, and creators from unauthorized use or reproduction. It grants the creator exclusive rights to their work, enabling them to control its use and financially benefit from it. Copyright covers a very wide range of creative expressions, including literature, music, art, adult porn movies, computer fonts, software programs, and, increasingly, digital content, including attempts to copyright register AI content. The primary purpose of copyright is to encourage creativity and innovation by ensuring that creators can reap the rewards of their efforts, thereby fostering a vibrant cultural and intellectual landscape.
In the United States, copyright law is primarily governed by the Copyright Act of 1976, codified in Title 17 of the United States Code. Key sections relevant to the protection of creative works include:
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17 U.S.C. § 102: This section outlines the subject matter of copyright, specifying that copyright protection subsists in "original works of authorship fixed in any tangible medium of expression." It includes literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and audiovisual works, among others. https://www.govinfo.gov/app/details/USCODE-2010-title17/USCODE-2010-title17-chap1-sec107
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17 U.S.C. § 106: This section details the exclusive rights of copyright owners, including the rights to reproduce, distribute, perform, display, and create derivative works based on the copyrighted material.
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17 U.S.C. § 107: This section establishes the doctrine of fair use, which allows for limited use of copyrighted material without permission from the copyright holder for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
Attorney Steve® Bonus Materials: Click here to learn more about copyright fair use. This issue is literally BLOWING UP and Vondran Legal® provides low cost fair use opinion letters.
California also has provisions that support the protection of intellectual property rights:
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California Civil Code § 980(a)(1): This section provides that the author of any original work of authorship has an exclusive ownership interest in the work, including the right to reproduce, distribute, and display the work.
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California Business and Professions Code § 17200: This section addresses unfair competition and can be used to protect copyrighted works from unauthorized use that constitutes unfair business practices.
Attorney Steve® Tip: Copyright infringement lawsuits must be brought in FEDERAL COURT in the proper federal district court. In California, this could be either the:
- Central District of California
- Northern District of California
- Eastern District of California
- Southern District of California
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Introduction to Hanagami v. Epic Games
The Hanagami v. Epic Games case is a contemporary example of how copyright law is evolving to address new forms of creative expression, particularly in the digital age. This case centers on the copyrightability of choreography and its implications for video game developers and other media companies. It highlights the challenges and opportunities in protecting choreographic works, setting a new precedent for evaluating such works under copyright law.
Epic Games Inc. (Epic Games) is the company that created Fortnight, the massively popular game that became a national sensation in the video game world, catching the attention of gamers of all ages and genders. Epic Games was sued by Hanagami, a dancer and choreographer who published a video of himself dancing on YouTube and registered the choreography with the U.S. Copyright Office. Epic Games released and sold items called "emotes" as an in-game purchase, which is a virtual animation that shows dances characters can perform in the game. Hanagami claimed that Epic Games infringed the copyright of the choreographed work, precisely a few of his "steps," which included a two-second, four-beat sequence at the beginning of the chorus. His "steps" were used and sold in-game as an emote.
The district court examined whether the two works were substantially similar, including intrinsic and extrinsic tests. The intrinsic test, the lesser debated of the two, looks to "an ordinary person's subjective impressions of the similarities between the two works." The extrinsic test, however, compares "specific criteria, which can be listed and analyzed to determine whether the works are substantially similar and can be decided by the court as a matter of law." Before applying this second test, a court must filter out a work's unprotectable elements to determine if the protectable elements are substantially like another work.
The district court relied on Rentmeester v. Nike, Inc., which explained that although
"photos can be broken down into objective elements that reflect 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, … none of those elements are subject to copyright protection when viewed in isolation." However, choreography is "the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole," so the district court concluded that choreographic works are composed of individual poses that, when viewed in isolation, are not protectable under copyright law.
Epic Games argued that not only are the individual poses not protectable, but the dance moves per se cannot be copyrighted. They point to the Copyright Office, which states that "[s]ocial dance steps and simple routines are not copyrightable. Thus, for example, the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable." The court did, however, find support that choreographed dances are more creative than a basic waltz and can be copyrighted; however, the "steps" here are less a choreographed dance and more a short routine that is unprotectable in isolation. (He only had protection over the entire 5-minute registered choreography).
The case was appealed to the Ninth Circuit, and the panel held that Hanagami plausibly alleged that his choreography and Epic's emote were similar under the "extrinsic test" for assessing substantial similarity. 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 may also include body position, body shape, body actions, transitions, use of space, timing, pauses, energy, canon, motif, contrast, and repetition. The panel concluded that the creative choices Hanagami 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—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.
Like other art forms, the court highlighted that choreography is protectable based on the selection and arrangement of its elements, not the individual movements. The court noted that even small portions of a work can be protectable if they are qualitatively significant. Hanagami's claim that the copied segment was a recognizable and repeated portion of his choreography was deemed plausible.
The court's decision in this case emphasized the importance of the selection, arrangement, and length of choreographic elements in determining copyright protection. This case underscores the need for clear guidelines on what constitutes protectable choreography under copyright law.
Potential Implications for Creators
The Hanagami ruling has significant potential implications for choreographers, dancers, and other artists by reinforcing the protection of their creative works. This landmark decision highlights several key points:
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Recognition of Originality and Fixation: The court in Hanagami v. Epic Games recognized that choreographic works, when fixed in a tangible medium such as a video recording or written notation, are eligible for copyright protection. This recognition affirms the originality of choreographic works and underscores the importance of their fixation. For example, a choreographer creates a unique dance routine and records it on video. By documenting her choreography in this fixed medium, she ensures that her original dance can be protected by copyright. This video recording serves as tangible evidence of her creative work, just as Hanagami's recorded choreography was recognized in the Hanagami v. Epic Games case.
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Encouragement to Publish and Share: By acknowledging the copyrightability of choreography, the ruling encourages choreographers and dancers to publish and share their works without fear of unauthorized use. This legal protection ensures that creators can benefit financially and maintain control over how their works are used, fostering a more vibrant and innovative creative community. For example, a talented choreographer creates an innovative dance routine and records it on video. With the assurance of copyright protection, the choreographer feels confident to publish her video on a popular online platform. As a result, her dance routine gained widespread recognition, and she received offers to teach workshops and license her choreography for commercial use. This protection boosts her career and enriches the dance community by making her unique creative work accessible to a broader audience.
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Extended Protection to Other Artists: The implications of this ruling extend beyond choreographers to other artists, as it sets a precedent for evaluating the protectability of various forms of creative works. By emphasizing the importance of the selection and arrangement of elements, the ruling could influence how courts assess the originality and fixation of other types of works, such as musical compositions, visual art, and literary works. For instance, a composer writes an original symphony and notates it on sheet music. The symphony is a complex arrangement of musical elements, including melodies, harmonies, and rhythms. Following the principles established in the Hanagami ruling, a court would recognize the originality in the composer's selection and arrangement of musical notes. The sheet music serves as a tangible medium that fixes his composition, ensuring the symphony is protected by copyright. In another example, a web designer creates an original website layout featuring a unique combination of graphics, text, and interactive elements. The design involves selecting and arranging these components to create a distinctive user experience. The principles from the Hanagami ruling would support the copyrightability of the web design, as it demonstrates originality and is fixed in the digital files that make up the website.
Challenges for Video Game Developers and Media Companies
Conversely, this decision poses new challenges for video game developers and media companies. These entities must now be more diligent in ensuring that any choreographic content in their products does not infringe on existing copyrights. This means implementing stricter review processes and allocating more resources to legal checks, which could increase operational costs but which costs may be well justified. Ultimately, these costs may be passed on to consumers, potentially leading to higher prices for video games and in-game purchases. However, consumers will likely pay any exorbitant price increases in exchange for quality content.
Broader Implications of this case ruling:
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Increased Legal Clarity: The ruling provides more explicit guidelines for what constitutes a protectable choreographic work, making it easier for artists and legal professionals to navigate copyright law. For example, clear documentation: Suppose a choreographer creates and documents a new dance routine through video recording. The ruling helps the choreographer understand that her choreography is protectable if it is original and fixed in a tangible medium, giving her the confidence to publish and license her work.
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Strengthening Creative Industries: Legal protection helps maintain the economic viability of creative industries, as creators can rely on copyright law to safeguard their intellectual property and secure revenue from their works. California Civil Code § 980(a)(1) provides that the author of any original work of authorship has an exclusive ownership interest in the work, including the right to reproduce, distribute, and display the work. This state-level protection complements federal copyright laws and ensures that creators' rights are recognized. Also, California Business and Professions Code § 17200 addresses unfair competition and can be used to protect copyrighted works from unauthorized use that constitutes unfair business practices. Examples of the strength of creative industries can be seen in the Economic Benefits for Choreographers section. With the legal protections affirmed by the Hanagami ruling, choreographers can license their works to dance schools and commercial productions, ensuring they receive financial compensation and recognition for their creativity. Another example is Sustainable Creative Businesses: Suppose a software developer creates an innovative program and knows that her code is protected by copyright. In that case, this legal assurance allows her to monetize her software through sales and licenses, contributing to the economic sustainability of her creative business.
Conclusion
The Hanagami v. Epic Games case marks a pivotal moment in the evolving landscape of copyright law, particularly concerning choreography. By setting a new precedent for evaluating and protecting choreographic works, this case underscores the importance of copyright law in fostering creativity and protecting intellectual property output. While this ruling benefits creators by providing greater protection for their works, it poses new challenges for media companies and developers. As copyright law continues to adapt to new forms of creative expression, the balance between protecting creators and facilitating innovation will remain a critical consideration.
Our firm protects and enforces the rights of creative firms and individuals, to discuss your case contact us at (877) 276-5084 or drop us a detailed message through our contact form. Vondran Legal® and attorney Steve Vondran is a leader in California intellectual property, business and copyright law. This includes counseling, arbitration, mediation and litigation.
