Everybody Dance Now! Actually, Don’t … That Choreography May Be Copyrighted

From Trademark and Copyright Law:

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.

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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.

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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.

Link to the rest at Trademark and Copyright Law

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