Feet, Don’t Fail Me Now…On My Way to Receiving a Copyright-Protected Title for My Choreographic Work

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Every culture has its own customs, rituals, behaviors, beliefs, dress, and languages.  These cultures may be united in a broad context, such as living on a particular continent, or in a narrow context, such as working in a specified field found within a one-mile radius.  Dancers are no different, for they breathe a culture all of their own.  The term “dancers” may encompass the performers for any of the forms of dance found within, such as ballet, contemporary, tap, hip-hop, jazz, cheer, swing, salsa, and more.  In which case, “dancers” are one culture brought together by beats and rhythms of steps in tune to music.  However, each of these forms relies on an even more specialized culture, especially where it concerns language.  A one-worded command by an instructor, monsieur, madam, master, or mistress in their language creates a crescendo of movement.

“Pirouette”

One beat, ballerinas slip their feet from wide second position into turned out fourth position.  Two beats, ballerinas’ knees lower into a plié.  Three beats, ballerinas’ torsos stretch upward. Four beats, ballerinas spin in a complete circle, holding the retiré position, while locking their vision on one point to minimize dizziness and their arms hold first position, rounded into an oval shape in front of their bodies at an 80-degree angle.  Five beats, ballerinas clench their abdominal muscles tighter to end their twirl in a controlled stop, finishing with arms and feet all in fourth position.

The pirouette is one of many movements taught in classical ballet classes.  It is a staple of countless ballets, especially if that pirouette is one with triple or quadruple spins and en pointe.  Fifty-five consecutive pirouette spins accomplished in 2013 is the greatest number of spins, as officially noted by Guinness World Records, a dancer has ever spun.

One double pirouette followed by a pas de basque, two grand jetés, four grand battements, a piqué soutenu en tournant for two eight counts, and one last piqué into third arabesque to finish then creates a sequence of movement performed in a ballet.

Because the terms and movements learned during classical ballet training are limited despite their complexity, sequences of movements, spins, jumps, and steps choregraphed into dances may all appear the same or similar without any uniqueness on the stage.  To the untrained eye, ballet may then look like women and men performing only the same bunch of jumps and turns repeated over and over without any true variation.  If one chorographer claimed ownership of such a basic, repeated, unoriginal sequence, then how could the form of dance ever continue?

Despite this limited dance language built on limited basic positions, dance sequences and combinations are nearly endless.  How then, can some choreographers gain copyright protection on their sequences while other identical sequences can be practiced countless times in both the classroom and on stage?  These questions become even more prominent with the rise of media spotlighting dance, such as videogames with emotes, YouTube with self-choreographed videos, and Netflix with dance shows and movies like Tiny Pretty Things and High Strung Free Dance.

Prima Ballerinas and Prima Facie Evidence

The Copyright Act of 1976, found within Title 17 of the United States Code, grants protection to certain works of art, along with ownership rights of those works.  While the Copyright Act most notably protects musical, cinematic, and literary works, that is not the only subject matter the Copyright Act covers.  It additionally covers architectural, dramatical, pictorial, graphical, sculptural, audiovisual, pantomimes, sound recordings, and yes, choreographic works–especially in connection with the ballets prima ballerinas perform in.

The Copyright Act protects these aforementioned works of art when these works are the “original works of authorship fixed in a tangible medium of expression.”  While these requirements to gain protection by copyright might be straightforward for certain works, such as novels, it can be trickier to accomplish when the works are inherently intangible and variable, such as movement by a dancer at any given moment.

However, the process of gaining protection is made simpler when protection attaches as soon as the work is “created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device,” rather than formally applying for copyright protection through the United States Copyright Office, so long as the work meets certain criteria.  Some may favor forgoing the voluntary process to gain official certification and protection by the government, but they expose their work to having no recourse when others infringe upon and plagiarize that work.   The government mandates a work must have formal copyrighted protection in order for it to be the subject matter in an infringement lawsuit and to possibly be allowed in as prima facie evidence for being the protected work in a court of law.

Arranging Spins, Steps, Jumps, and Movements Together as One Elaborate Dance Sequence, Choreographers Attempt to Leap Over The Line From Unprotected to Protected, Copyrighted Choreographic Work

For choreographers specifically, if they want to register their choreographic sequence for copyright protection, they, too, must prove (1) they have a “work” to be protected, (2) it is original, and (3) it is fixed in a tangible medium.

In regard to the first element, the Copyright Act explicitly identifies choreography as a “work” protected.  Although the act does not define “choreography,” courts have relied on the common usage of the term, found in dictionaries such as Merriam-Webster Dictionary and American Heritage Dictionary.  The latter defines “as an art of creation and arrangement of ballets and dances, as the art and the technique of dance notation, and the art of dance as a verb.  In consideration of whether a dance is a piece of choreographic work, courts could additionally look at certain elements of the choreograph, such as the basic steps and the combinations and sequences of those steps, the number of dancers, the performance space and arena, the accompaniment music, the purpose of storytelling and expressing human emotions, costumes, props, and visual and auditory effects.

However, choreography must be “more than a single dance move.” The Copyright Office will not protect individual movements, dance steps, and short dance routines comprising of only a few movements, even when that routine might otherwise be novel or distinctive.  This means that classical ballet’s pirouette, passé, sissone, sous-sus, tendu, attitude, dégagé, fourth position, and more, or other dance routines, such as the basic waltz step, are not copyrightable by themselves or when combined in short sequences.  This then allows for choreographers, instructors, and dancers to incorporate such movements as they are inspired to design their sequences.

The Copyright Office will also not protect movement works that fall under “functional physical movements” and “ordinary motor activities,” such as yoga positions, exercise routines, and aerobic dances.  This additionally excludes athletes’ celebratory gestures and dance movements from copyright protection.

Therefore, while the individual steps are not copyrightable, the whole, if it meets the next two requirements, can be.

The second element of originality then flows forward from the first need for protected copyrighted choreography to be more than a single dance move.  Even though the Copyright Act withheld a definition for “originality,” the notorious copyright case Feist Publications v. Rural Telephone Service set the standard for originality as possessing a minimal level of creativity.  In applying this standard to choreographers, this means to be original, a work must be (1) created by the choreographer by independent labor rather than by novelty or under the “sweat of the brow” doctrine, and (2) the dance displays some modicum of creativity.  Furthermore, simply because a preceding work inspired the new work does not automatically disqualify the new work from being original and thus receiving a denial of copyright protection.  The new work, however, cannot be so basic and stereotyped that it contains no substantial effort of creativity.  The dialogue of whether a dance is original or not has often been decided upon by the community of dancers and critics, and the challenger must bear the burden of proving the work to be unoriginal.

The last element of fixation in a tangible medium eludes choreographers the most out of the three elements needed for copyright protection.  Unlike writings that are to be viewed on printed paper—or digitally on the screen, but still printed in a fixed form—dance, in its most basic form, is viewed in person without the crucial material stapled to paper, or even the stage.  Additionally, while the text of a book never changes once printed and readers can flip forward and backward with the confidence the text will still be there and be the same, audience members cannot rewind or fast-forward a live performance of dance.  A performance may occur only once or twice with three dancers, as in dance academy showcases, or it may occur six times each December with two hundred dancers, such as the Russian composer Pyotr Ilyich Tchaikovsky’s Nutcracker.  No matter how many times any given sequence is performed, once completed, the dance is over and a dancer can never return to that exact moment.  Even if the dancer were to later perform that same sequence, it will never be the same one that occurred in that previous moment.

For a choreographer’s work to become fixed in a tangible medium, he must take additional steps he might not otherwise.  He can videorecord the dance, but that recording is limited to displaying that one specific performance, and it might not capture the dynamics, intention, and the style itself of the dance, and it might be subject to interpretation.  Or, he may make dance notations, writings, and symbols on two-dimensional papers of fourth-dimensional movements and fifth-dimensional dynamics. While this leaves a precise record, it consumes the time of the choreographer—time he could be using to teach and tighten his sequences.  Or, he may do both; however, issues then arise when differences are seen between the recording and the record.  Courts have not affirmatively answered if these create different individual protected works or if only the material that is the same throughout the various versions is copyrighted.  Furthering this issue is how dances change minutely each performance or season, such as reducing the count for an entrée in a grand pas de deux because the performance of Tchaikovsky’s Swan Lake takes place on a smaller stage than last year’s had.

That Two-Step Skip and Slide Doth Protest Too Much To Be an Original Choreographic Work

Hip-hop artist 2 Milly sued the creator of the videogame Fortnite, Epic Games, for copyright infringement over choreograph the artist had named “Milly Rock” that later appeared within the game.  Later, the artist dropped the lawsuit after clarification from a different Supreme Court ruling would implicitly mean the “Milly Rock” move would not be an original choreographic work protected in the Copyright Act.  This had not been the first time music artists accused the company of using others’ dance moves in the Fortnite game that grosses hundreds of millions of dollars a month with more than 200 million players.  Two of the many sequences questioned included Snoop Dog’s “Drop It Like It’s Hot” move and BlocBoy JB’s “Shoot” move.

Even though these artists claimed these short movements or unoriginal steps as their own, they most likely would not have been awarded copyright protection for their dances comprising of a short-timed industry-standardized movement.  Through an examination of what the Act does and does not protect, it implicitly states that dances can only be protected if they are produced with skill, creativity, and sophistication.  Otherwise, a copyright on such a short, unoriginal sequence of repeated movements would greatly constrain dancers’ freedom of creatively choosing which movements to incorporate as their own in any given dance.

In Fortnite (Epic Games) vs. Rap Artists: Legal Opinion On the Intellectual Property Use of Artists’ Dance Moves, Gbenga Odugbemi explained why the government would not grant a copyright to the artists’ dances: “An effort to claim copyright infringement by Epic Games is futile and is dead on arrival as there is no copyright infringement.  At best, in order to ascend to the level of ‘originality’ presupposed by the law, a simple dance move is just a brick in the wall of what is required, and there has to be a sequence of different moves, expressive patterns that should ultimately culminate into a ‘choreography’.”

These artists are not alone in that while they began suits for copyright infringement on choreographic works, they discovered a choreographic work must first have been protected by the act and registered with the Copyright Office.  Belgian contemporary choreographer Anna Teresa De Keersmaeker accused singer Beyoncé Knowles of plagiarizing several sequences of dance in Beyoncé’s 2011 video “Countdown.” However, the choreographer had not registered the older works and could not sue for infringement.  The singer Lady Gaga had also been accused of stealing visual imagery in her music video.  After losing on appeal in an intellectual property infringement lawsuit, the French contemporary artist Orlan was ordered to pay Lady Gaga and Universal Studies the equivalent of $18,000 in fees by order of the French court.  Even without federal copyright protection, choreographers can still sue for injunctions, profit, and actual damages, but not for infringement, statutory damages, and attorney’s fees.

Even the Nutcracker, in its many variations and incarnations, has been the subject of copyrighted choreographic works in infringement lawsuits.  When Macmillan Publishers pursued publishing a book containing still imagery of the Russian-American contemporary ballet choreographer George Balanchine’s Nutcracker, Balanchine’s executrix sought an injunction to stop the printing of that book based on copyright infringement of the choreography.  After the case was appealed based on the lower court using the incorrect infringement test in Horgan v. MacMillan, the parties eventually settled outside the courtroom.

Toeing the Line En Pointe Between Freedom and Order

While the saying goes “everyone and anyone can dance,” not any average dancer can be accepted into the New York City Ballet, the American Ballet Theatre, or the Paris Opera Ballet School, whether as a principal, soloist, or corps de ballet dancer.  While everyone and anyone can combine a group of movements, not any average artist can compose and choreograph the ballets Anastasia, Giselle, Sleeping Beauty, Romeo and Juliet, and Don Quixote.

Likewise, not every dance can reach the standard of being a choreographic work of originality fixed in a tangible medium to gain copyright protection.  This standard may leave certain choreographers and dances open to vulnerabilities when attacked and plagiarized, wreaking havoc on reputation and creativity.

While the lack of copyright protection for all might dismay, disappoint, and even outrage some artists, this enables dancers and choreographers the nearly limitless freedom of choosing what movements and sequences of movements they want to represent the meaning of their dances, whether that be performed in the classroom, on the street, on the stage, behind the camera, or within the typed words of a novel or article.

The works that do rightfully rise to the standard of being copyrighted works bring order, predictability, recognition, admiration, and awe to the dance and the dance community.