Suno AI Lawsuit Breakdown

This complaint is very similar to the Udio complaint. I will address different points. Suno is the first Music AI platform I started testing last month. Others including Udio followed through word of mouth. Prior to May, there were no viable music AI platforms according to professional standards, but Suno’s latest version opened the floodgates of creativity – the industry mentions 10 new songs a second on Suno alone – and there are already a good few dozens of platforms quickly catching on.

In a way, everything we may say now about AI is at a very early stage of training, building, debugging and adjusting and is evolving as we speak through the invaluable input of millions of user pioneers. We are seeing progress unfold at the speed of light before our eyes. Everyone is learning, AI is learning and countless users who never made music in their lives are also learning about making music, with each platform providing valuable tips and tricks. There is a process of demystification and breakdown of loops, beats, melodies, and vocal flows in different languages, as well as deconstruction and re-appropriation of the music production process. It brings tears to my eyes to see so many users become creators instead of passive consumers.

Many users throughout platforms mention that since AI came along, their favorite songs are the songs they made themselves. This is fantastic for humanity. Obviously, these users have now less time to listen to commercial songs. Until now, we had to listen to everything the industry imposes on us, because there was no alternative to learn from, other than public domain. It was time-consuming, frustrating, and depressing due to violent, reductive, and misogynistic lyrics and systemic undue sexualization and dehumanization of artists by the industry. Now that AI listens to these commercial “hits”, we can protect our ears while focusing on more productive things that bring us joy. In a way AI doesn’t do anything more than we’d be doing without AI, but AI saves us time and protects our emotional well-being and integrity by ingesting and filtering the trash the industry throws at us, so that we can minimize our exposure to harmful content.

Can the music industry really stop progress and continue keeping AI for themselves?

In both complaints we see that the platforms refuse to disclose what data they trained their models on. They claim it is proprietary information. The reasoning behind refusing to disclose training particulars may be that anything related to training is a trade secret and training in itself is fair use.

Ideally a LLM should have no restrictions regarding training and they shouldn’t pay for data that is publicly available. Copyright law specifically provides a training / education exemption under its fair use doctrine which may differ from one country to another, but essentially recognizes that non-commercial and transformative activity which is good for humans and society in general justifies limiting the ability of rights-holders to derive profit from copyright. Without fair use exceptions, there would be no journalists, no standup comedians, no content creators, no Youtube or TikTok, no parodies, no criticism (i.e. pop art), etc.

I can certainly copy an entire song to break it down and learn how it was made note by note. Why can’t AI? When I need to learn a music video choreography, I copy entire videos from the internet, I break them down into sections which I then further copy (several times per section, slow then normal speed) into a myriad of little video tutorials that I watch a million times until I get the moves right. While I learn the moves, I reproduce these moves with my own body which I film (another countless times) and edit into new videos. This is a 100% fair use example (and btw it’s true, I do that every day). Why can’t AI do the same with music? What’s the difference? Why does it stop being fair use when AI does the copying for the purpose of training rather than a user trying to learn a song or a dance?

It seems that both complaints put much effort in proving that the LLMs copied entire songs for training. They are not really denying it. Training is clearly a transformative process. I think what the fuss is revolving around is whether there is such a thing as “excessive training” that should be excluded from fair use defenses.

In Para. 12, the plaintiffs suggest that music generated on AI platforms is NOT human-created work! This is a strange insult to millions of human users. I’m pretty sure this qualifies as hate speech. Last time I checked, I am human and I write my own lyrics. Yet another lowly and unfounded attack. Why do they think they are the only humans in the room. WTF!

Due to the dehumanizing characterization of human users as non-human, I am not going to read the rest of the complaint. Sorry, but I can’t deal with more hateful content. Not on Canada Day. I’ll let my bot finish the job but I won’t publish the result.

Udio Complaint Entirely Based On Industry Infringing Its Own Lyrics

I am reading the Udio complaint right now. It is a little more than a “nothingburger” as the majority of users and IP lawyers have overwhelmingly noted. It is also an example of how to make a mockery of the justice system, beginning with basing an entire claim on self-serving evidence, more precisely all the evidence is based on intentional infringement of industry-owned lyrics. The only thing the plaintiffs are capable of proving with this lawsuit is how they hypothetically infringed their own lyrics, forced AI to further infringe their copyright through very precise instructions, and obtained a copyright infringing result. Several times.

If copyright law has ever been clear about something since the 18th century is not to copy other people’s texts without their consent. If you give AI infringing lyrics, it will come up with an infringing output, how surprising is that.

This lawsuit is a coaxing manual. How about, we copied the actual chorus from Michael Jackson’s Billy Jean lyrics and directed Udio to sound like Michael Jackson in as much detail and likeness as possible, and Udio made a song that resembles Billy Jean!!! So, the plaintiffs entered into prompt the excerpt “Billy Jean is not my lover, she’s just a girl who claims I am the one”. One can’t make this up. This is monumental bad faith and a waste of time of judicial resources.

Moving on, the plaintiffs copied word for word lyrics excerpts from All I Want For Chrismas is You (disclaimer: I can’t stand this song), inserted the infringed lyrics into the prompt and the name Mariah Carey along with other personal and artistic characteristics of the artist and again, the platform gave them exactly what they wanted, a copyright infringing result.

The exact same thing happened to other very old songs My Girl, I Get Around (Beach Boys), Dancing Queen (solely based on “we can dance we can jive”), American Idiot (interesting choice of song), as well as other holiday songs.

On pages 27, 28 we have an interesting “artist resemblance” table I deemed useful to reproduce as an example of exactly how NOT to make music with AI. I doubt that the great majority of AI users have the same desperate clinging to has-beens as the plaintiffs imagine. Don’t these overexposed artists already have thousands of copycats who have never heard of AI? The market was already saturated with these styles before the advent of AI. Also, the table doesn’t specify what lyrics were used in the prompt, so it is safe to assume that from the outset the lyrics were infringed like in the previous examples.

I hope you read that. It was quite funny. I have a few favorites in there. You ask AI to recreate a famous song by a band that rhymes with the smeetles, and OMG, AI sounds like the Beetles. Do you seriously expect a music AI platform had never heard of the Beetles or did you force the AI to go out of its way to find out about “smeetles” and which famous band rhymes with… Smeetles?!? I looked it up. It is not a word.

Words are the most important thing for LLMs. This is why you can’t ask ChatGPT or Claude to answer your emails, because they see each word in the email they need to answer as a prompt and the result is guaranteed nonsense. Each word inside the prompt (even someone else’s email) is interpreted separately as a part of an instruction, you must think like an algorithm for a minute and understand how a model interprets words.

Unless the model, like the latest Udio, is specifically programmed to ignore the artists names and rhymes thereof (eyeroll really), it will always try to reproduce as accurately as possible the instructions contained in words a human provides. This is why it will always be human users who will bear liability for AI’s output.

The complaint goes on to say that Udio copied other people’s vocals. I agree that it is the case and I agree it is not cool, but that’s the courts fault. There is little will to grant copyright to vocal performers, even in jurisdictions like Canada where vocal performances are specifically protected by the Copyright Act.

I spent 4 years in court trying to stop a label from remixing and selling my own vocal samples, and the only reason I won is because the contested vocals were attached to my own original lyrics in a distant slavic language, so it became eminently clear that the only way to enforce music copyright is to own the lyrics, something that continues being true in the field of AI.

The rest of the complaint adresses the fair use test, so that’s for the jury to decide. On a first sight, the main grievance appears to be the notion of “competition”. The industry is obviously diverting the fair use doctrine in order to enforce an anti-competitive monopole on all the musical loops in the world and trying to use the justice system to prevent any new music being made, unless they own the rights. That in my opinion is another sign this is an abusive lawsuit.

One thing I’m hearing from everywhere on this issue is that if the courts side with the music industry, nothing is in place to stop Russia and China to keep infringing the industry’s IP with the same tools, fair use or not, and they will flood us with their own commercial versions of AI generated output and will charge us for it, while our unsustainable music industry keeps dying anyway. There comes a moment when you just can’t afford to stifle innovation as a court.

RIAA versus Suno and Udio, Greed Suing Itself, Bring Popcorn

Greed versus greed, you guys. The weather has been too nice these days for me to read the lawsuits yet, but I promise I will by Canada Day, because nothing could be more exciting. For now, just know that I am on nobody’s side. I do believe that training AI on all the music in world is fair use and doesn’t require a licence. As with everything copyright, you can only know from the output if something is infringing, on a case by case basis, there is no blanket solution to this situation. However, the major music gen companies (which quite hilariously are entirely financed by the music industry) have for long flaunted the idea that they automatically somehow “own” all the rights to musical compositions generated on their platforms. Now that they know they own zero rights in the generated content, it appears from here that the industry is suing itself, to basically give itself a pretext to shut down these platforms, and force licenses for thousands of years on all other platforms they don’t control, existing and yet not created.

I didn’t know the term “coaxing” until the Anthropic lawsuit, but from what I’ve heard about the evidence in the Suno and Udio lawsuits, the term strongly applies. The platforms were specifically prompted to infringe copyright from the outset, otherwise nobody in their right mind would ever ask AI to recreate Johnny B Goode or Great Balls of Fire. You can literally do it with a guitar or a piano. And people have been doing it for a hundred years already on a daily basis before computers existed. Are you going to sue the piano for playing Great Balls of Fire? The whole idea is to screw the users, and whatever opinion I may draft on the matter, it will always be user-centric.

Even before the lawsuit I noticed that the algorithms of Suno and Udio are being messed with and at times rendered quasi-useless (as in they rarely accurately respond to prompt), this is what gave me a hint that they are industry-controlled and then I found out who the first big investors are. I am keeping close tabs of algorithmic conduct across platforms, but given these lawsuits, I won’t give away any particulars on that because I have no intention helping either party. It is entirely possible that I myself end up being sued for generated content. I thought I was taking risks, but nowhere near the “evidence” I’m hearing from in these lawsuits. I am lawyering up too (as usual) and any concrete evidence on algorithmic conduct is for now litigation privilege, until I decide to lift the privilege or to use it against someone.

If you want to follow gossip and people pretending to be adversarial, you can check out https://www.musicbusinessworldwide.com/.

But for now, the best use of of my time will be to go to the beach, and I strongly advise you to do the same. The lawsuits are not going to run away, they will entertain us for years to come.

Disclosure of Conflict of Interest; The blog may move but won’t end

Conflict of interest: I can no longer write on artificial intelligence for this blog because I started working with artificial intelligence myself and I’m already on the other side of the fence. From what I’ve seen so far, AI benefits humanity in a more productive and sustainable way than the outdated IP regimes that require …

FTC Bans Non-Competes To Boost Innovation And Fight Exploitation, Canada Must Follow

Noncompete agreements are a widespread and exploitative practice that prevents workers from taking a new job or starting a new business. Non-competes foster toxic work environments, by often forcing workers to either stay in a job they want to leave or bear other significant harms and costs, such as being forced to switch to a …

Mickey Mouse Enters Public Domain

Disney no longer has exclusive copyright over the original Mickey Mouse cartoon. Happy New Year! The copyright protection on Walt Disney’s 1928 animated short Steamboat Willie was initially due to expire in 1984, but Disney lobbied to have US copyright laws changed to cover the “life of the author plus 50 years”, which protected Willie …

A List of Generative Patent Drafting Software

Patent drafting can be very technical, cumbersome, and time-consuming, yet there is no guarantee that your patent will be approved. One may need to file in several countries, thus increasing expenses. Patent drafting AI is filling a real and urgent need to slash patent filing costs to minimum. Removing prohibitive monetary barriers to patent filing is poised to empower inventors to file as many applications for as many patents as they can possibly think of on an ongoing basis. This is good for innovation.

Here is a non-exhaustive list of patent-drafting bots by alphabetical order. We haven’t had the opportunity to test them, so this is not an endorsement. The list excludes software that only features search and research specs:


A useful reading: https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2018-19/january-february/drafting-patent-applications-covering-artificial-intelligence-systems/

China Internet Court Attributes AI Generated Image Copyright To Human Prompt Creator

On Monday, the Beijing Internet Court held that a human plaintiff prompt is sufficient to invoke copyright protection in a Stable Diffusion generated image, so long as the output qualifies as an “original” work. Copyright is determined on a case by case basis, so this decision is not entirely inconsistent with other AI jurisprudence trends …

US FTC Memo To Copyright Office Warns Gen AI Causes Unfair Competition, Deceptive Practices, and Consumer Risk

The United States Federal Trade Commission (FTC) submitted a comment to the Copyright Office after conducting its own AI study last August. Although the FTC has no jurisdiction over copyright matters, it does have jurisdiction over consumer and competition violations and can indeed investigate and penalize companies for such violations independent of parallel copyright lawsuits, and in spite of …

Hanagami Wins Appeal Over 4 Count Choreo Infringement by Epic Games Fortnite Emotes

This is fantastic news. I am reading the 31 page decision by the 9th Circuit Court of Appeal right now and will learn the 4 counts along with the full emote dance for a split screen video. It is amazing that courts are finally starting to recognize that a 2 second sequence is not too short to deserve copyright protection and cause liability when commercially used without permission. When you copy someone’s moves without permission for profit, you will be on the hook. And no, I don’t believe that this case will curb the use of dance moves in video games. Certainly not at the stage of dismissal and prior to a jury verdict. On the contrary. Emotes are the most commercially viable feature of Fortnite and the game would be irrelevant without them.

This is the video that was used in court to prove the identical similarity between the original routine and the moves copied by Epic Games.

I personally don’t play Fortnite or any other video game using gun violence and allowing for the murder of innocent civilians (that’s the majority of games unfortunately), since I am against gun violence in real life too. Something tells me that playing violent games is a form of indirect consent to wars and violence, so I carefully avoid engaging with entertainment that depicts assault, battery, homicide, misogyny, and homophobia. The metaverse is no exception. Zero tolerance for violence. However, I do dance to Fortnite emotes I encounter on Tik Tok (so long as there are no guns involved). So I will dance to this routine as well.

I note in the US there is the practice to “register” copyright before filing a lawsuit, however registration is not proof of ownership, but rather a formality that can create a rebuttable presumption (prima facie evidence) of ownership if done in the 5 years of first publication1. A Youtube video of a filmed choreography (prior to defendant’s use) and anything else with a valid time-stamp of a filmed process is actual proof, for example a series of user generated or fan videos of the original choreography posted on a platform like Youtube or Tik Tok after first publication and prior to the commercial use by defendant. Vimeo can’t be used in court in this way because it allows users to replace existing videos with more recent ones and keep the initial post date and engagement. As for Youtube and Tik Tok, even private and unlisted videos may qualify.

So this case is now going to trial, unless it settles (which it most certainly will).

  1. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38bHighlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works. ↩︎

My Initial Highlights (this will provide a good overview of dance jurisprudence in the US, there is none in Canada although statutory protections exist in the Copyright Act)

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.

To prevail on a claim of copyright infringement, a plaintiff must show that his original work and the allegedly infringing work are “substantially similar.” […] 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.

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.

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.

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)].

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.

The district 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.

The court, having concluded that the dance steps were not protectable on their own, then concluded that Hanagami was entitled to protection “only for the way the Steps are expressed in his Registered Choreography” as a whole, “i.e., in the entire five-minute work.”

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)).

Statutory Background

  • The 1976 Act 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.”
  • Although more than forty years have passed since the 1976 Act’s enactment, few courts have addressed federal copyright protections for choreographic works. […] 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 Nutcracker. 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.
  • In appeal, the Second Circuit reversed and remanded, concluding that the district court erroneously held that still photographs could not infringe a choreographic work. To reach this conclusion, the Second Circuit looked to the Compendium of U.S. Copyright Office Practices (“Compendium II”) as persuasive authority. 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)).

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.

  • 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. 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 did it elaborate on the definition or characteristics of a choreographic work.

The 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)

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.

Similarity Test

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.

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 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.” 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 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)).

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.

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 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”).

We 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 […] 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 placed over the descending chromatic line consisting of combination of arpeggios and two-note sequences; rhythm of steady eighth note beats; and pitch collection. 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)

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.

At the motion-to-dismiss stage, the court must only consider whether the plaintiff has plausibly alleged that the two works share substantial similarities.

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.

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.

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.” 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 portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly 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);

It 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).

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). 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.