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Ninth Circuit Focuses On Extrinsic Test In Ruling On Choreography Copyright
To determine whether there is "substantial similarity" between contesting works in copyright infringement cases, federal courts within the U.S. Court of Appeals for the Ninth Circuit use a two-step analysis: first an "extrinsic" test based on objective criteria that includes testimony from experts; followed by a subjective, non-expert "intrinsic" test from the perspective of an "ordinary reasonable observer." District courts typically use only the extrinsic test on motions to dismiss the pleadings in order to spot any objective similarities between works in dispute.
The Ninth Circuit has now issued a rare ruling on how the extrinsic test should be applied in determining the copyrightability of choreography. Hanagami v. Epic Games Inc., 22-55890 (9th Cir. 2023).
In the case, choreographer Kyle Hanagami filed an infringement action against Epic Games in the U.S. District Court for the Central District of California over an emote named "It's Complicated" from the popular video game Fortnite Battle Royale. Hanagami claimed the emote was an "inch-perfect copy" of choreography he created for music artist Charlie Puth's "How Long" video. The suit focused on a four-beat segment of a five-minute choreographic work that Hanagami — who has also served as choreographer for such artists as Jennifer Lopez, Britney Spears and Justin Bieber — registered with the U.S. Copyright Office.
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