The United States has seen a tremendous growth in the field of IPR, so much that
the IP related industries have contributed majorly to the US economy. The
nation's artistic expand is unmatched, with the world's most prestigious artists
living within its bounds, creating the next big thing – be it on a canvas,
recorded, staged or scripted. Creators worry about the authenticity of these
works becoming meaningless with time, as more entities continue to rip off such
works and pass them off as their own.
Copyright protection is an essential tool
required to protect the originality and creativity that goes into these
creations. Dancing, in particular, has a lot of popular moves or trends that are
constantly being endorsed by influencers to spread among the masses. Are there
any artistic rights given to the creators of these moves?
What constitutes a
choreography and how specific is the law in defining it? This paper answers
these questions and discusses in detail how dance choreographies can qualify to
get protection under the copyright laws in the US in today's day and age, by
analyzing how the law has evolved over time and the loopholes which exist till
Article I, Section 8, clause 8 of the US Constitution gives the power to the
Congress to promote the progress of useful arts by securing the authors'
exclusive rights to their creations. This is famously known as the Progress
The Copyright Act in 1909 did not cover choreography as protection back then was
given only to useful arts
, however, things eventually changed in 1947 when the
realm of protection was extended to choreographic works as well, but only if
such a choreography would qualify under a dramatic act, or a dramatico-musical
In the 1960s, the Congress finally started to increase the reach
of copyright protection to cover abstract
choreographies, but it was necessary
to be defined because modern choreographies are frequently formed
through a chain of abstract movements, and not precise steps. It wasn't until
1976 that the Congress categorized choreography as a separate viable form of
art, allowing copyright protection for the same.
The Copyright Act, 1976 lays down the requirements for copyright registration of
a choreographic piece under Section 102(a)(4) as 'pantomimes and choreographic
works', that being qualification of creation as a choreographic work,
originality, and fixation. Choreographic work here means the arrangement and
composition of dance patterns and music, which are usually intended to be
executed to music; originality covers original, creative and uncopied work; and
fixation means fixing the piece in a tangible format.
The law evolved further to allow works being created under pantomimes and
post January 1, 1978, to be protected further for 70 years
after the death of the creator.
Originality and Fixation
Originality and creativity go hand in hand. A work that lacks originality is not
protected by copyright, although it is easy to show component of originality in
any piece. A grocery list, list of phone numbers or a mechanically produced copy
of a map, for example, would not be counted under original works, and hence not
be qualified for protection. On the other hand, a novel, a drawing, a musical
composition or anything created by someone in the first instance would be given
Non-original elements of a work are not protected. A book, for
example, may be copyrighted, but non-original elements such as facts or elements
in the book not created by the author may be copied freely without resulting in
infringement. Copyright protection could be limited to works of high quality or
works showing creative elements that would not be obvious to one working in the
The case, Feist Publications v. Rural Telephone Service
, set the Feist
Standard of Originality which stated that originality has two requirements – the
work must be independently created by the author, as opposed to copied from
other works, and that it possesses at least some minimal degree of creativity –
a telephone book publisher simply listing the subscribers in alphabetical order
is not putting in any creative effort because this method has been used over
time in telephone books and is not a creative selection or arrangement of
information, however, a new method to arrange the names on the list could be
considered creative in terms of selection.
For dance and choreography, originality is determined by how the piece is set
physically, how it's been composed, and how the execution is coming about.
Creativity and originality are showcased by how different movements are put
together to form a combination, which is usually, but not necessarily,
accompanied by music. Such combinations of movements are what we consider choreographic works
. Originality and creativity, however, just like any other
media, are not enough to provide copyright protection to such works. The piece
needs to be fixed as evidence in order to obtain protection from the law.
Fixation refers to works being fixed in tangible forms, as discussed above.
Copyright infringement may occur when a copyrighted work is fixed in a copy or
record without the permission of the copyright owner. Unauthorized adaptation,
performance, distribution or display may also result in infringement.
is a useful tactic when it comes down to analyzing infringement, as it is used
to compare the allegedly infringing work with the copyrighted work to see if
copyrighted expression has been copied or if there is substantial similarity to
prove infringement. It is, therefore, a necessary element for attaining
federal copyright protection.
The famous case of Horgan v. MacMillan, Inc
. is important not only in terms
of establishing how essential fixation is to copyright protection, but also with
respect to drawing a contrast between choreography in performance form and that
in book form. The case dealt with the issue of whether photographic depiction of
a ballet choreography was sufficient fixation in order to provide copyright
The District Court was of the opinion that mere pictures of dancers
just showed stills that could not possibly be used to reproduce the entire
ballet, and therefore, one could not create a stage performance with the help of
photographs alone. The Appellate Court, however, overturned the decision of the
District Court and stated that a picture capturing even a single dance movement
can communicate a lot.
Photographs of dancers with different poses and
attitudes, at various instances of time could give any ordinary person an idea
as to how the movement could have happened within the piece. This decision shows
how important it is for courts to take into consideration expert opinion in such
cases, considering the lack of clarity on the definition of choreography within
the provision. A judge in a court cannot be given the sole authority on making a
decision with respect to whether or how a piece can or cannot be recreated.
Without fixation, it is not possible to attain a federal copyright. For example,
if a Jazz dancer choreographs a piece and performs it in front of an audience,
the piece will amount to an original choreography piece, fulfilling the basic
creativity requirement, but if there is no recording or photographic fixation of
the same, it would not be possible to provide federal copyright protection to
The requirement for fixation is not difficult to meet. The choreographer could
simply make notations around the piece, or record a video, or take photographs
of the dance. Anyone making subsequent copies of the same would be infringing
the copyright that is now attached to the choreographic work. Even if a dancer
has committed his/her piece to memory and performed it publically, copyright
protection cannot be provided without authorized fixation.
Choreographic works which cannot be copyrighted
It is clear under law
and from a general understanding of choreographic copyright that individual
dance moves cannot be copyrighted as they do not form a choreography unless
combined together fluidly as a composition of moves. However, there are various
other forms of choreographies
or combinations of
moves which, by law, have been deemed un-copyrightable.
According to the U.S.
Copyright Office Circular 52, dance categories not included under copyrightable
material include social dances – ballroom, folk, swing, line and square dances,
motor and athletic activities like sports, yoga, dressage routines,
skateboarding or snowboarding tricks etc., routines performed by non-human
entities like animals, sculptures, robots and other inanimate objects, and
choreographies derived from older pieces with slight moderations which do not
cross the minimum creativity level.
Recently, multiple lawsuits have been filed against Epic Games, the creators
of Fortnite (a video game released in 2017) over the use of dance emotes, the
routines behind which have been copied from various music videos and other
original content available on different media, which is also really popular
worldwide. The routines shown in the game are not more than a few seconds long,
but are exact copies of those executed by the plaintiffs on television.
The dilemma that arises in these cases is whether such routines, which have
been fixed in video or photographic format, prima facie qualify for copyright
protection. Circular 52 lays down certain guidelines which state that routines
which are extremely short or meant for public entertainment cannot receive
copyright protection. They also state that choreographic works which have some
amount of creative expression involved, and are meant to be or have been
performed by those skilled in the field and in front of an audience are the only
kinds which can be registered for copyright. A simple routine with no creative
expression cannot qualify for protection; but what is expression, and why do the
copyright laws require it in a choreography?
Expression, here, could mean ideas which are non-verbal in nature, and portrayed
in the form of a message delivered by the choreographed piece. Expression is
assumed to be a part of the choreography, as the choreography is assumed to have
a story, idea or message behind it. This, perhaps, is because of the fact that
the law took plenty of years to evolve in order to cover choreography as a field
separate from dramatic, musical or theatrical works, which more often than not,
have dramatic, comic, historical, sexual and various other expressions, emotions
or ideas behind their creation.
Dancing, nowadays, is done mostly out of fun and passion. Even commercially,
genres like hip hop, house, urban, pop and lock, dancehall etc. are gaining
popularity, even though they usually have no idea
as such. There is no message intended to be delivered to the audience, that too
if there is an audience present to view the choreography at all.
professional dancers today simply create choreographies, videotape them and
upload them on social media and video streaming sites like YouTube. Modern
professional dancing consists of quicker body movements which simply go with the
rhythm of songs, with no idea to express and mostly, no audience to show to, so
does that mean that such choreographies shouldn't receive protection under
Coming back to the discussion on the pending lawsuits, it is hard to tell
whether the infringement suits against Epic Games would stand. According to the
complaint filed by Ferguson, the routine, also called the Milly Rock
is his original creation, which is easily distinguishable from other
Moreover, it is so popular that a lot of players (of the game, Fortnite
also recognized the moves from his music video from 2011, as a lot of
celebrities have also performed it on numerous occasions after having received
permission from Ferguson in exchange for compensation. However, the routine
hasn't been registered for copyright protection, which is what brings down the
probability of Ferguson winning the suit close to half. This applies to the
plaintiffs in the other two lawsuits as well.
This issue is fundamentally problematic because apart from unauthorized copying
of Ferguson's routine, the creators of the game have also in some manner taken
away his identity. Those who play the game are more likely to believe that the
is Epic's own creation. This could create a number of hurdles for
Ferguson because in the future, other celebrities would be less likely to seek
permission from him for performing his routine due to lack of possibility of
infringement and the legal consequences thereof. His earnings will be affected,
and he would no longer be given absolute credit for his own work by the masses.
Awareness amongst professional choreographers
Another landmark case in the history of copyright law in the US is Martha Graham
School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance,
Inc. Martha Graham, a famous dancer and the sole proprietor of her dance
school, gave all her works' rights to a non-dancer named Ronald Protas, who had
been hired for an important position at the school.
After her death, Protas
waited for a couple of years to start the proceedings for protecting her work.
However, the Copyright Office questioned him on the grounds that the works
concerned had been published years ago, and could thus not receive copyright
protection. Protas was even suspected of deliberate misrepresentation
respect to Martha's works. These problems wouldn't have arisen had Martha
herself registered for protection of her works all those years ago, instead of
transferring ownership rights to another party. This case is important as it
highlights the need for professional dancers to be aware of the law and
protecting their works in order to avoid exploitation and legal hindrances.
Professional dancers in today's day and age have a lot to lose in the absence of
federal protection of their works. The choreographies that they create are what
define them and give them an identity and a livelihood. In order to fight these
loopholes in the law with regards to choreographic works, the dance community
should educate itself on legal issues surrounding intellectual property, and the
rights of choreographers.
Artists in general need to be aware of the legal
complexities which they would likely be faced with at any point in time. Dance
curriculums could include a basic study of the copyright law - how it applies to
choreography and the requirements laid down for registering a choreography for
While video-graphed choreographies have a wider reach in terms of being seen by
the public, it is harder to prove ownership or originality after a point because
of unauthorized copying of said work as compared to organized public
performances. It is also a bit unrealistic and impractical to assume that the
makers of the law would be having full knowledge of the complex nature of dance.
This is precisely why it is important to include legal education within the
current arts curricula so that artists could be included in proceedings in order
to give expert opinion with respect to works concerned, and also be of help to
the law-makers in identifying the specifics of the various arts and incorporate
a better understanding of them into the statute.
Copyright laws grow with advancements in jurisprudence, which further basis
itself on case to case analysis. In a country like the US, with rapidly emerging
cultures, the law will never be sufficient in terms of determining protection
and sanctions in each case. Nothing is objective, because factors necessary to
classify copyrightable material – i.e. originality and fixation – are extremely
What is interesting, is the different means by which they can be
interpreted in different cases, but this should not be left to the judges alone.
This calls for interference and interpretation via expert opinion. Newer trends
need to be dealt with by putting in place newer provisions. The law on
protection of 'pantomimes and choreographies' is fairly new, and needs to
undergo more work in order to be more specific in nature, and the shortcomings
which exist today have to be covered by those being affected by them through
more lawsuits and quick action.
- Cheryl Swack, 'The Balanchine Trust: Dancing Through the Steps of
Two-Part Licensing', 6 Jeffrey S. Moorad Sports L.J. 265, 272-273 (1999)
- Ibid, pp. 275
- Supra note 1, pp. 276
- Copyright Office Circular 52
- 499 U.S. 340 (1991), as cited in Bitton, Miriam, 'Protection For
Informational Works After Feist Publications v. Rural Telephone Service
Co.', Fordham Intellectual Property, Media and Entertainment Law Journal,
Volume 21, No. 3, 2011
- Supra note 1, pp. 278
- Julie Van Camp, 'Copyright of Choreographic Works', 1994-1995
Entertainment, Publishing and the Arts Handbook, pp. 59-92 (1994)
- 621 F.Supp. 1169, 1170 (S.D.N.Y. 1985), as cited in note 8
- Terrence Ferguson v. Epic Games, Inc. (First Amended Complaint), Case
no. 2:18-cv-10110-AS, Anita Redd & RH Performer, LLC v. Epic Games,
Inc. (Complaint), Case no. 2:18-cv-10444, Alfonso Ribeiro v. Epic Games,
Inc. (Complaint), Case no. 2:18-cv-10412, The United States District Court
for the Central District of California, Dec 17, 2018
- Terrence Ferguson v. Epic Games, Inc. (First Amended Complaint), Case
- 153 F. Supp. 2d 512 (S.D.N.Y. 2001)