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Legally Speaking — Dance and Copyright

by | Sep 30, 2021 | 0 comments

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Column Editor:  Anthony Paganelli  (Western Kentucky University) 

Against the Grain Vol. 33#4

As the saying goes, “dance like no one is watching.”  In the realm of copyright and choreography, it might be best if no one is watching if you are using a copyrighted dance work.  Of course, understanding the copyright and choreographed relationship has been difficult since it was added to the U.S. Copyright Law Section 102(a)(4) in 1976.  Due to this recent addition to copyright law, there is little legal literature regarding the representation of dance infringement litigation.  There are some high profile infringement issues that involve Martha Graham, as well as Beyoncè. 

The major issues in choreographed works and copyrights is determining how and what is a copyright choreographed work.  For instance, Michael Jackson performed the iconic “moonwalk” dance move during a live event in 1983.  The move has been reproduced by numerous people and performed in different public events.  Even though we associate this dance move with Michael Jackson, it was performed several decades before and was never copyrighted. 

As noted by Saucier (2018), “The Moonwalk is not a work protectable by Copyright Law because it is considered a ‘social dance step’ or ‘simple routine,’ which is explicitly not covered under copyright law.”  In fact, the dance move was first documented by Cab Calloway around 1930, and later with Bill Baily during performances at the Apollo Theater in 1955.  The dance move was not a unique style of dance and has been performed over the past several decades before it was globally popularized by Michael Jackson. 

Therefore, the question is how do you copyright a dance?  As mentioned prior, the U.S. Copyright Law has established protection for choreographed works, but in order for a choreographer to have standing in the court, they must register the work with the U.S. Copyright Office.  However, to register the work, a choreographer must have the original work documented in a fixed and tangible medium. 

The elements of a copyrightable dance work includes “rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage; a series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole;  a story, theme, or abstract composition conveyed through movement;  a presentation before an audience;  a performance by skilled individuals;  and musical or textual accompaniment” (U.S. Copyright Office). 

For a choreographer, the complex issue is establishing what is original.  According to Saucier (2018), there are two factors for choreographers to achieve an original dance.  First, “the work is the independent creation of the choreographer.”  This means that the dance cannot be categorized as a social dance.  According to the U.S. Copyright Circular 52, social dances includes ballroom dances, folk dances, line dances, square dances, and swing dances. 

The second factor is “that the work exhibits some degree of creativity.”  While determining what is original and creative is difficult, a choreographer could consult or collaborate with other experts in the field to best determine originality and creativity.  The U.S. Copyright Office does provide information on several types of body movements that are not eligible for copyright protection, such as yoga and even a touchdown celebration are body movements not covered by copyright laws. 

Furthermore, a somewhat difficult aspect of dance copyright is the fixed and tangible medium.  Most dances are often created for a small number of performances, which most choreographers may not video record as the tangible medium.  In addition, some choreographers may not use dance notation, which is a written documentation that could be registered with the U.S. Copyright Office.  Another way dance can be fixed to a tangible medium is through still images or textual descriptions.  Often, the inability to document and submit the work for copyright is the issue several choreographers have in defending their works in the court systems.  

Once the choreographed work has been fixed to a medium it is technically copyrighted, but for full protection under the U.S. Copyright Law, the work needs to be registered with the U.S. Copyright Office in order to gain support of the court system.  As Saucier (2018) mentioned, the purpose for the registration is to give the choreographer the right to reproduce their work, prepare derivatives of the work, distribute the work for sale or license the work, allow the work to be performed publicly, and “the right to display a copy of the dance by means of a film or slide or television image.”

While there is not a major dance copyright infringement case that has rivaled certain music or computer software infringement suits in terms of monetary settlements, there are few cases regarding copyright infringement on choreographed works that are significant.  The two major copyright trial cases since 1976 included the famous 20th century choreographers George Balanchine and Martha Graham. 

Fuller vs. Bemis

Before choreography was included into copyright, Kraut (2016) described a case from 1892 regarding the choreographer and dancer, Loïe Fuller that filed a lawsuit against a former dancer Minnie Bemis.  As a dancer touring the vaudeville and burlesque venues, Fuller created the Serpentine Dance in 1891 for the play Quack, M.D. 

During the time period, she performed her dance at different theatrical venues, which she often fought for better contract agreements with theater managers.  She even sought compensation and attribution for her likeness image, which the theaters used to promote the venue and her signature Serpentine Dance.  Following a failed attempt to sue a theatrical company for breach of contract, she left the play Uncle Celestin.  The production company then hired Minnie Bemis to replace Fuller and perform the Serpentine Dance.  This led to Fuller suing Bemis for copyright infringement. 

Fuller had attempted to copyright the performance through a textual description of the dance that included her costume and how it was used in the dance.  Two copies were mailed to the Library of Congress in May 1892, along with the fifty cents for the copyright registration.  Unfortunately for Fuller, the costume description in the registration was considered a skirt dance or Nautch dancing, a colonist term for Indian dance. 

Eventually, the U.S. Circuit Court rejected her claim of copyright infringement.  Judge E. Henry Lacombe ruled on June 10, 1892 that Fuller’s description of the dance described “The merely mechanical movements by which effects are produced on the stage are not subjects of copyright where they convey no ideas whose arrangement makes up a dramatic composition” (Kraut, 2016, p. 73).  This case provided an idea of the early history of the relationship between choreography and copyrights that are being introduced more in the court systems recently.

Fortnite Lawsuit

For example, the leading video game company Epic Games that produced the popular Fortnite video game in 2017 has been sued by rapper 2 Milly for the “Swipe It” dance and the Instagram influencer the Backpack Kid for the “Floss Dance,” as well as Alfonso Ribeiro, the actor who portrayed Carton from the 1990s television sitcom The Fresh Prince of Bel-Air for the “Carlton Dance.”  These celebrities sued Epic Games for the use of dances in the video game. 

The lawsuits claimed that the video game allowed users to purchase specific dances that were used during the game.  According to Hamandi and Nelson (2020), “The third-person shooter allows players to buy and perform in-game dances or ‘emotes’ that largely draw from relevant pop-culture.  Parties claiming they have invented, or first performed, the dance on which an ‘emote’ is based have filed multitude of copyright law suits against Epic Games, the publishers, and developers of Fortnite.” 

In 2018, the lawsuits were filed and the plaintiffs had to establish if the dances were copyrighted and registered with the U.S. Copyright Office.  As noted prior, the key to dance copyright protection is that the work is registered at the Copyright Office, which none of the dances were registered at the time.  Following a U.S. Supreme Court decision in the Fourth Estate Public Benefit Corp. v. Wall-Street.com, those filing a copyright infringement suit, must have the work registered with the U.S. Copyright Office.  Prior, a person could apply for copyright protection after filing the lawsuit, which could take several months. 

While the concept that the work must be registered before an infringement case can be filed has become complex, especially considering the vague description and requirements of copyrighting a dance work.  The other aspect is the cost and time to register creative works with the U.S. Copyright Office. 

In the case of Fortnite, the defendants filed a motion to dismiss in February 2019 based on the dance moves being too simple, and therefore the dances could not be copyrighted in accordance to the 1976 Copyright Law.  To support the motion, the defense presented “correspondence with the court at that time that showed Ribeiro’s claim had been denied by the Copyright Office, which decided the Carlton was only a ‘simple dance routine’ and thus couldn’t be copyrighted” (Gach, 2019).  Yet, the “Floss” dance was registered as a choreographed work and dismissed (Hamandi & Nelson, 2020). 

There were other lawsuits against Epic Games, including two basketball players from the University of Maryland, which was also dismissed based on two factors.  First, the works not being copyrighted prior to the lawsuit did hinder the plaintiffs’ case in seeking protection for their dance works.  Second, entire copyrighted dances are protected under copyright law, not individual dance moves, which the “emotes” in Fortnite used a short segment of the dances. 

The Issues with Choreographic Works and the U.S. Copyright Law

Based on the court’s decision, the ability to protect choreographed works is complex and difficult.  As mentioned earlier, choreographers have the challenge to document a dance onto a fixed and tangible medium, meet the requirements for registration from the U.S. Copyright Office, and to defend their works.  The Fortnite case clearly indicates the difficulties choreographers have protecting their work.

In addition, the lack of court decisions and briefs regarding choreographed works are limited, which indicates choreographers are not taking advantage of the 1976 copyright law to protect choreographed works.  According to Krakower (2018), “Since the Copyright Act’s enactment, which included protection for choreography, few choreographers have asserted this hard-won legal right.  Many choreographers seem to pass on taking legal action when faced with the daunting task of understanding how to make a claim, and then navigating through entrenched copyright law defenses.” 

Krakower (2018) noted that more can be done to protect these works.  She stated, “its lack of definition and minimal case law leaves gaping questions for any future litigants.  For better protection of choreography, Congress should tighten up the statute by providing a more concrete definition that does not require a narrative or plot element to ensure the greatest American choreographers and their progeny are adequately protected.”  Krakower also addressed the need for further clarification on fair use in regards to choreographed works, which was the issue involving the Fortnite lawsuit. 

Further research is needed in order for librarians and publishers to collaborate and support our dance communities.  This wonderful art form can be better promoted, preserved and archived once we are able to better understand, advocate, and navigate the legal issues surrounding the creative world of dance. 

Reference List

Choreography and Pantomime.  (2021).  Copyright registration of choreography and pantomime.  U.S. Copyright Office, Circular 52.  Retrieved from https://www.copyright.gov/circs/circ52.pdf.

Gach, E.  (2019).  Fortnite lawsuits dropped: At least for now.  Kotaku.  Retrieved from https://kotaku.com/fortnite-dance-lawsuits-dropped-at-least-for-now-1833208400.

Hamandi, H. & Nelson, G.  (2020).  Dance-off ends: A (partial) resolution to Fortnite’s slurry of copyright lawsuits.  A J Park.  Retrieved from https://www.ajpark.com/insights/articles/the-dance-off-ends-a-partial-resolution-to-fortnites-slurry-of-copyright-lawsuits/.

Kees, L.  (2020).  Copyright for choreography: When is copying a dance a copyright violation?  Intellectual Property Watchdog.  Retrieved from https://www.ipwatchdog.com/2020/11/19/copyright-choreography-copying-dance-copyright-violation/id=127455/.

Krakower, K.  (2018).  Finding the barre: Fitting the untried territory of choreography claims into existing copyright law.  Fordham Intellectual Property, Media and Entertainment Law Journal. 28(3). 

Kraut, A.  (2016).  Choreographing copyright: Race, gender, and intellectual property rights in American dance.  Oxford University Press. 

Saucier, A.  (2018).  Dance and copyright: Legal “Steps” for performers.  Center for Art Law.  Retrieved from https://itsartlaw.org/2018/10/30/dance-and-copyright-legal-steps-for-performers/.  

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