‘Tis the season of summer stock, music festivals, and outdoor performances. For my own part, I took in Jacob’s Pillow in the Berkshires, one of the country’s preeminent dance festivals. While an amazing piece of dance can make everyone want to join in, there are some dances no one should mimic without authorization, at least not as part of a commercial “public performance,” as that term is defined by 17 U.S.C. § 101. Why not? It’s not because they won’t look good performing the dance (we remain agnostic on that), but because the choreography for the dance may be under copyright.
Choreography and Pantomime
Although dance is an art form as old as time, copyright protection for choreography in the United States is a relatively recent development, created when the 1976 Copyright Act added choreography and pantomime to the list of copyrightable subject matter. Choreography, as opposed to dance itself, is the composition and arrangement of “a related series of dance movements and patterns organized in a coherent whole.”
Prior to 1976, some of the dances from modern or contemporary companies might have been left out in the copyright cold. Before the 1976 Copyright Act added choreography as its own category, works of dance could only be copyrighted if they fell within the definition of a “dramatic work.” This category had some requirements that might not be met by much modern dance (for example, the requirement that the work develop characters or express an emotion through specific movements). Since the 1976 Act, modern and contemporary dance is more likely to be afforded copyright protection because no clear narrative arc is required so long as the choreography “convey[s] some thematic or emotional concept to an audience.” The timing of this protection puts the U.S. behind other countries, like France, where the first copyright protection for choreography was established in 1862.
Copyright Registration for Choreography
Because all copyrighted works must be “fixed in a tangible medium of expression,” choreographic works are typically submitted to the Copyright Office for registration on video; or described in text or depicted in photographs or drawings; or recorded in a traditional dance notation format (e.g., Labanotation or Benesh Notation). Regardless of which of these forms is used, the fixation must be in sufficient detail to be the template for subsequent, uniform performances.
When considering whether a work is “choreography,” the Copyright Office considers several factors typical of choreographic works, including the presence of rhythmic movements from a dancer’s body in a defined space; compositional arrangement into a coherent, integrated whole; musical or textual accompaniment; and dramatic content such as a story or theme. The Copyright Office will also consider whether the work is designed to be performed by skilled individuals for an audience. Works must additionally have a sufficient level of original authorial contribution, which means that they must be independently created and contain a sufficient amount of creativity.
Not All Dance is Protectable
Not everything that we may think of as “dance” is protectable by copyright law. For example, the following types of dance are not protectable:
- Social Dances: Social dance steps and simple routines are not copyrightable as choreography. For example, an application for registration of the electric slide (and other line dances) would likely be rejected, suggesting that Congress did not want to take the fun out of weddings (or that Congress did want to take the fun out of weddings, depending on your attitude towards dancing at weddings). Critical to this distinction between choreography and social dance is the identity of the intended participants. While choreography is, as discussed above, intended for skilled dancers to perform for the general public, social dances are intended to be danced by the general public.
- Individual Movements and Simple Routines: Much like words and short phrases (which generally are not subject to copyright protection), de minimus discrete dance steps cannot be registered for copyright protection. For instance, even though a complex choreographic work incorporating the moonwalk or a ballet plié may be registered, these individual moves may not be registered. Why? Allowing these building blocks to be protected could chill creativity and innovation. Likewise, simple routines are also not considered to be works of original creative authorship. So while those simple and short end zone dances may contain some elements of copyrightability, in that they communicate a theme or concept to an audience on a type of stage, they may nevertheless not be sufficiently complex to be registered.
- Ordinary motor activities and feats of physical skill. Ordinary motor activities, functional physical movements, competitive events and feats of skill or dexterity are also not considered protectable choreography, nor are sequences of movements that are intended to improve one’s physical or mental health, like yoga, exercise routines or aerobic dances. For example, if the same series of movements is used in a dance and in an ice skating routine, the latter will be far less likely to merit copyright protection because it is part of a competition. Similarly, even though juggling involves the rhythmic movement of a skilled performer, there is likely no dramatic content aside from whether the juggler will successfully keep the balls in the air.
- Routines not performed by humans: Although this may seem obvious, in order to be protectable, choreography must be authored by humans, and for humans. Professor Nimmer is quick to point out to that choreography made by or for animals or robots cannot be copyrighted. Sorry, dancing robots, no dice.
If a choreographic work is subject to copyright protection, an unauthorized public performance thereof may be an infringement. So, if you happen to find yourself watching the Limón Dance Company perform at the Pillow this summer, think twice before you try to put on your own public performance that copies their moves (for perhaps your physical as well as your legal health). But as for that electric slide, dance your heart out. For more information on copyright registration for choreography, check out the Copyright Office Circular 52.
Alissa C. Clarke was a summer associate at Foley Hoag.