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Choreography and Copyright Law in the United States

Abstract:

Copyright law in the United States dates back to 1790, but the legal framework protecting

choreography and dance is fairly novel and limited. Choreography was first mentioned as a

copyrightable work in 1976, and in its infancy it presents many shortcomings. These

shortcomings come from a number of places including the nature of dance and art itself as an

always evolving entity. The always changing nature makes congress unable to fully define what

dance and choreography are in the legal arena and how to regard them in copyright cases. Other

shortcomings come from the structural complexities in creating a dance work such as the

collaboration of music, movement, sets and costumes all belonging to separate authors and the

lack of an adequate dance notation system that is widely practiced and disseminated. A final

recognizable hinderance comes from the lack of awareness and education of the dance

community on the breadth and limitations of their rights. Since the adoption of The Copyright

Act of 1976 in 1978, many legal commentators have devoted their time and energy to analyzing

the copyright protections of choreography. However, many questions remain unanswered by the

members of the dance community. The following research provides a digestible definition of the

parameters of the 1976 federal copyright law addendum and a brief legal history of choreography

in federal courts for both non-dancers and non-legal experts. The research identifies and

discusses many of the limitations in copyright law in respect to choreography while also

recognizing philosophical issues in legal specificity and concrete definitions of abstract entities

like originality, ideas and expression, and what constitutes a tangible media. The research is

focused on the beauty in artistic collaboration and potential detrimental legal implications of

doing so. Possible solutions to legally motivated problems faced by dancers and choreographers

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are also proposed throughout the span of the paper as well as behavior to emulate from past

dance professionals.

Choreography and Copyright Law in the United States

Copyright laws are designed to protect the basic rights of intellectuals and creatives by ensuring

personal ownership of original intellectual properties and creative works that includes rights to

use, distribute, and recreate. (Copyright Law, 284-286) However, perhaps more importantly is

that copyright law is a statute effectively aiding in the preservation of creativity and originality.

To illustrate this point, if someone chooses a career in choreography, spending time, energy, and

effort on creating original works, and someone else could get paid for creating and performing

their dance, why would anyone choose a career in the arts? There would be no motivation to be

innovative, and the arts, if not governmentally subsidized, would swiftly die.

Copyright law in the United States dates back to 1790, but choreography has only been

recognized under this law since the Federal Copyright Law of 1976. Prior to this addendum,

choreography was not even mentioned as a copyrightable material. (Copyright Law, 284-286)

In outlining the basic parameters of copyright law, a material must only meet two conditions to

be considered copyrightable. First, the work must be original, and second, the work must be

fixed in a tangible medium. While these conditions seem straightforward, in the true nature of

law, complexities arise in the vague word choice and articulation by the United States

Congressional Studies, that will be addressed in the research after the basic parameters of

copyright law are properly articulated and understood. (United States Cong.)

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The common practices for copyright trials are tried differently among circuit courts in the United

States, which is another complexity in itself that will not be discussed in this paper. For the

purpose of this research endeavor, the process of the Second Circuit court is used, as it is a

digestible step-by-step format. (United States Court of Appeals) First, to test if something has

infringed upon copyright law, the court blatantly asks the defendant, the person accused of

appropriating the work, if they copied the plaintiff’s work, or the person who claims the

originality. If the defendant denies, the court does a thorough check to see if the defendant had

access to the plaintiff’s work at any point in their histories. If the defendant is not likely to have

had access to the work, the second step is determining a striking similarity between the two

works. Proving this is the only way a plaintiff could prevail. Striking similarity means the

defendant could not have plausibly created the work independently because the works are so

similar. In contrast, if the defendant was indeed likely to have access to the original work, the

two works are tested for probative similarity as the second step. There are a number of ways this

is tested, but one is the probative, or substantial similarity test, which compares only the works in

their final form of production and are examined for exactly that - substantial similarity. (United

States Cong.)

To further test for similarity, the court conducts an audience test where it is determined whether

to an ordinary observer, in a subjective and factual analysis, if the works appear similar to the

tested degree of substantial or striking. More generally, does an ordinary person see that the

defendant appears to have taken the “heart” of the work in question and how much of the heart

was taken. As outlined by copyright lawyer, Matthew Bunker, determining the heart of the work

is a result of subjective reasoning and can often be misconstrued because of this. The heart of the

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work refers to the properties that allegedly made it original or unique in the first place, and

prompted the plaintiff to initially come forward with copyright allegations. This decision is based

on light scrutiny, as not to misrepresent aesthetic similarities as copyright such as in dance

genres like ballet, jazz or lyrical. (Bunker) Most ballets will have similar movement vocabulary,

as will most jazz dances and lyrical dances. For example, in ballet, a male variation that includes

fouette turns a la second followed by landing in a deep fourth position with arms outstretched

into a series of tombe coupe jetes does not constitute copyright.

To prove copying in a situation where the similarity test is not enough proof, the plaintiff would

go to a third step and rely on an expert testimony, particularly one from the arts. Structural

similarities due to the genre of the work are not considered and the audience test is held under

medium scrutiny as a more discerning observer. This means that again, aesthetic similarities and

movement vocabularies common to the dance genre are not considered, but the arts professional

looks on the pieces for copying in the order of dance steps and overall amount of steps that are

ordered similarly to a similar piece of music and overall similar “heart of work.” (Bunker)

Since the basis of copyright law is understood, this research can proceed with a dissection of the

issues in legal framework surrounding choreographic copyright. A common Latin phrase, now

used as everyday legal jargon, is “stare decisis” which translates to “let the decision stand.” This

is significant because many court cases, particularly copyright cases, are decided by what was

ruled in a similar case before it. (Bunker) In choreography, there are no truly successful legal

precedents, making the “stare decisis” decision-making process flimsy and ineffective in

protecting future works. Only two cases concerning choreography and copyright have been heard

by a federal court in the history of copyright law. Both included high-profile pioneers of dance,

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George Balanchine and Martha Graham. Through these cases came a lot of development in

choreographic copyright, but also exposure of inefficiencies. (VanCamp)

In the preceding case concerning Balanchine, Horgan v. MacMillan, the Second Circuit ruled

that single steps and recognized patterns are uncopyrightable. To clarify, one single step to a

dancer is what one word is to an author. Words cannot be copyrighted, thus dance steps cannot

be copyrighted. Even if a choreographer is known for the step, or the generation of a certain

movement, it is uncopyrightable i.e. the Bournonville jeté. Just as trademark dilution happens to

Kleenex and Google because a population misuses the words to more generalized terms like all

facial tissues or online searches, this can also happen to dance combinations like turns, time steps

and common combinations like two pas de bouree into a pirouette or sequences at the ballet

barre. (Horgan v. Macmillan)

This case also produced another interesting ruling that read, “social dance and simpler routines

are not copyrightable.” This includes the Charleston, the Jitterbug, and of course the Whip and

the Nae Nae. This ruling is also hypothetically enough grounds to leave many ballet, hip-hop and

postmodern works, to name a few, unable to achieve copyrightable status. First, a look at the

roots of ballet establishes it as a social and cultural dance as first performed by the European

courts of King Louis XIV. Secondly, hip-hop dance is also a social dance performed first by

Black and Central Americans on streets of large cities. Also, in a discrepancy of “simpler

routines,” it could be argued that because postmodern gestures are humanistic, they are simple

and thus could also not be copyrighted. For example, in Duet, choreographed by Paul Taylor, he

and his partner do nothing but sit in silence onstage for three minutes. Does this degrade his

work to an uncopyrightable state? (Horgan v. Macmillan)

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In this case, congress defined copyrightable choreographic works as “more intricate dances, such

as the ballet, devised for the execution by skilled performers for an audience.” This definition is

detrimental to the effective protection of dance, because of its lack of specificity and inclusion of

all currently existing and potentially evolving dance forms and intentionalities. (Horgan v.

Macmillan) Dance and choreography has evolved to be humanistic, site specific, internally

experienced, and inclusive of not just technically skilled performers such as in the Judson

Church Era. (Jackson) One popular thought in the dance community hopes to increase the

specificity of the federal definition of copyrightable choreographic works to include these new

forms of dance and decrease room for interpretability. However, another thought sees that if

Congress were to define specifically what the term “choreography” means, future advancements

in dance and human movement experience would be restricted by the legal framework of a

definition that simply includes today and does not look to what innovations cannot be

foreseen.These dueling philosophical issues are partially why this art form will struggle in the

legal arenas, because it will hurt the art to make the definition more strict and hurt the protection

of the art to leave it to interpretability. (VanCamp)

A long legal battle concerning Martha Graham that ended in 2004 also included an interesting

ruling that produced two very distinct emotions in the dance world. The specifics of the case are

complex because of the many appeals, or reappearances in court, so it will not be discussed in

this study. In simple terms, Graham wrote friend Ronald Protas as heir to her estate in her will.

After her death, Protas claimed the copyright to 70 of Graham’s most famous works and wanted

to prevent the Martha Graham Dance Company from performing them as well as using her name.

The court then found that most of the dances and the Graham name belonged to the Martha

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Graham Dance Center because of the work-for-hire clause in copyright law. This meant that

because Graham had sold her dance school to a nonprofit foundation she created, all of the

dances she created after 1956 were created as an employee and thus belonged to the Dance

Center. (Dunning)

Protas’s lawyer considered it an insult for Martha Graham to be considered an employee, but the

director of the Dance Center spoke of arrangements made by other recognizable choreographers

of the time that drew up contracts that enabled them to remain owners of their dances even as an

employee. He recognized that Graham had been negligent in creating this sort of arrangement.

This is a particularly resonating lesson for modern day freelance choreographers for dance

studios, conventions, or companies that want to remain owners of their work. A simple

contractual agreement would suffice as grounds to release the work-for-hire clause. (Dunning)

There were two varying emotions resulting from this case, as referenced earlier, that present

some philosophical issues today. One side of the community was happy for the Martha Graham

Dance Center to get the rights to continue to perform her dances so they would not perish with

her. This comes from the nature of dance as an intangible thing. Dance is perishable, just as its

authors and performers are because there is no sculpture, manuscript or painting to view after its

creation. Dance is extremely time-sensitive to that specific performance or display. However,

with the fixation in a recurring company repertoire, these dances can be preserved and performed

for audiences spanning generations. The second school of thought acknowledged that Martha

Graham, and the heir she chose does not own these dances, thus many choreographers working

for employment or in collaboration do not own their work. (VanCamp)

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Dance is one of the most expensive art forms to create because of the use of dancers, studio

space, music, costumes, set, venue, stage, lighting, etc.

To illustrate the intricately woven and interdependent collaboration of the arts, Pearl Primus’s

Strange Fruit, is a mesh of poetry, spoken text, costuming, choreography, and dance. (Jackson)

These kinds of collaborations are often ones that produce the dances discussed in history books,

and are viewed as timeless and part of the classics. However, how different would this dance be

without the access to the words? What if the costume was different? Would the movement still

tell the story? Would Strange Fruit be the same work studied now? Some may say yes, while

others argue that the absence or alteration of one portion of the work would change the result

entirely thus illustrating the complexities of collaborative work in the legal arena. Another

collaborative issue is a choreographic method using improvisation and dancer or assistant

involvement. Often is the case that a dancer will be moving in an improvisational setting that

sparks a section of the choreography, or an assistant will choreograph works. This is observed by

Lev Ivanov and Marius Petipa’s choreographic relationship in Swan Lake, The Nutcracker and

other famous ballets where Petipa would leave Ivanov, his assistant, to choreograph entire acts of

ballets. (Snyder)

Merce Cunningham, a notable pioneer of Modern dance, was once quoted saying, “you have to

love dancing to stick to it. It gives you nothing back, no manuscripts to store away, no paintings

to show on walls and maybe hang in museums, no poems to be printed and sold, nothing but that

single fleeting moment when you feel alive.” (VanCamp) This quote, while poetic, is also one of

the biggest shortcomings in the legal protection of dance. As previously mentioned, dance is

intangible. Copyright requires work to be fixed in a tangible medium to be considered

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copyrightable. Agnes De Mille, a notable choreographer of the 20th century suggests that video

is the only way for dance to be truly preserved because in film style, emotion, execution, and

texture of the work can also be captured as opposed to just written notes on the steps’ order.

Alwin Nikolais, another pioneer of modern dance, took extra precautions when ensuring the

ownership of his work because he took two different videos - one in production with costumes,

lights, and staging, and one as just bare choreography. However, even videos have their

limitations, because anyone experimenting with dance for the camera can see how infinite

camera angles and perspectives can drastically change the way an audience views a work.

(VanCamp)

The tangible medium requirement for copyright is perhaps the biggest obstacle choreography

faces in becoming fully legally protected. Prior to the 1976 copyright addendum that included

choreography as a copyrightable work, it was presented in court as a type of dramatic

composition such as theater and playwriting. (United States Cong.) This produced many

problems. While the arts may have similarities in theory, the structure, production and overall

nature of dance and choreography was too dramatically different from that of the theatrical arts

to effectively be protected legally on the same grounds partially because of tangibility. For one, a

theatrical production operates on a tangible manuscript complete with stage directions and

delivery notes. Theatre and music are also dependent on the words or sounds, arrangement and

characterizations that are also noted in the scripts or musical notations. (Peter Pan Fabrics, Inc. v.

Martin Weiner Corp.)

Dance does have notation systems that were developed over time, like Labanotation that was

adopted in 1928 by Rudolf Laban, but none are extremely effective. (Jackson) The lack of

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effectiveness of dance notation systems stems from the fact that there is not a notation system as

universal as a script or a sheet of music that all dancers and choreographers are literate in.

Moving forward in its ability to be effectively protected under copyright laws, dance requires

that a notation system be devised that is widely disseminated and accepted as in theatrical works

and music.

Solutions to combating the downfalls of copyright law in respect to choreography begin with a

more legally literate dance community. This can be achieved through basic awareness objectives

and educational initiatives that focus on the legal complexities choreographers would likely face

or could avoid in their future careers. Classes focusing on copyright law and its relationship to

choreography should be implemented in collegiate dance curriculums. While it is unrealistic to

assume that this message would reach all dancers, this solution is a positive start to creating a

generation of more educated dance consumers and participants. These students are the future of

presenting choreography and could one day be called to testify as an expert in the audience test

of a copyright infringement case. These basic law literacy classes in college dance specializing

curriculums or traveling conventions and seminars would be helpful tools to equip current and

future dance professionals with insights to protect their careers and avoid financial stress or

potential litigation. Understanding a problem is the first phase in repairing it. Just as dancers can

be uneducated on their legal rights, it is unrealistic to assume lawmakers fully understand the

complexities of dance either. An educational initiative would produce a legally literate group of

individuals of which some could then choose to participate in lobbying efforts in Washington

D.C. that could potentially make change to the laws currently protecting dance. If dancers

understand the laws that protect them currently, the community can then effectively understand

what advancements are needed to ensure adequate protection.

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Educating dancers on their rights, how to preserve them and how to create change in the current

law is essential in maintaining choreography as a substantial career path. With the recent fusions

of dance with videos on digital and social media, the art form is more widely disseminated and

reaches far more than the traditional audience. This is helpful in allowing dance to flourish and

take a new place in society, but it is also dangerous in preserving rightful ownership of a work.

Now, more than ever, understanding of copyright law is vital to a choreographer’s success. The

legal framework surrounding copyright protection of choreography is relatively novel, and

because of this there are shortcomings that can only be truly fixed by educated dance

professionals with advanced legal literacy and a passion for improving their world.

Works Cited

Bunker, Matthew, J.D. "Media Law: Copyright Infringement." Media Law and Regulation.

University of Alabama, Tuscaloosa. 22 Mar. 2015. Lecture.

"Copyright Act of 1976." Encyclopedia of the First Amendment (1976): 284 - 286.

Copyright.gov. United States Copyright Office. Web.

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Dunning, Jennifer. "Martha Graham Center Wins Rights to the Dances." Editorial. The New

York Times 24 Aug. 2002: n. pag. The New York Times. The New York Times, 23 Aug.

2002. Web. 1 Mar. 2016.

Horgan v. Macmillan. 789 F.2d 157. United States Court of Appeals, Second Circuit. 28 Apr.

1986. Print.

Jackson, Lawrence. "Harlem Renaissance and Black Dance" Dance History II. The

University of Alabama, Tuscaloosa. 18 Feb. 2016. Lecture.

Martha Graham School and Dance Foundation INC. v. Martha Graham Center of Contemporary

Dance INC. 380 F.3d 624. United States Court of Appeals, Second Circuit. 18 Aug.

2004. Print.

Peter Pan Fabrics, Inc. v. Martin Weiner Corp. 274 F.2d 487, 489. United States Court of

Appeals, Second Circuit. 21 March 1960. Print.

Snyder, Rita. "Marius Petipa’s Ballets" Dance History I. The University of Alabama,

Tuscaloosa. 2 Nov. 2015. Lecture.

United States. Cong. Senate. Committee on the Judiciary. Copyright in Choreographic Works.

86th Cong., 2nd sess. S. Doc. 60682. Washington, D.C.: U.S. Gov. Print. Off., 1960.

Print.

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Van Camp, Julie. “Copyright of Choreographic Works.” Entertainment, Publishing and the Arts

Handbook. Ed. Robert Thorne, John David Viera, and Stephen F. Beimer. Deerfield, IL:

Clark Boardman Callaghan, 1994-95. 59-92. Print.