Copyright Protection of Dance Choreography In The U.S.

By Justin M. Jacobson & Jeffrey E. Jacobson

Recently, several lawsuits were filed against Epic Games, the creator of the game “Fortnite,” for the alleged usage of protected dance choreography in their product.  In particular, the game developer was providing and monetizing “emotes.”  The in-game “emotes” are movements that the character is able to perform while playing the game and allegedly featured the same dance moves as those contained in several well-known works.  These “emotes” can either be purchased through the developer’s marketplace or earned through gameplay.  Some of these plaintiffs include the creator of the “2 Milly” dance, Terrence “2 Milly” Ferguson; the “Backpack Kid,” rapper Blocboy JB for his “Backpack Kid dance;” “Fresh Prince Of Bel-Air” actor, Alfonso Ribeiro for his “Carlton Dance;” and, most recently the “Orange Shirt Kid,” “who’s signature dance move ‘Random’ is [allegedly] being sold in Fortnite as ‘Orange Justice.’” With the sudden rise in such lawsuits aimed at the use and reproduction of allegedly protected dance choreography, it is important to understand what can be protected and what an individual can do to protect their own unique dance choreography.

The 1978 Copyright Act provides copyright protection for “pantomimes and choreographic works” created after January 1, 1978, which is fixed in some tangible medium of expression. (17 U.S.C. § 102(a)(4)).  Before that a creator had to attempt to register these as “dramatic compositions.”  The U.S. Copyright Office provided some additional guidance on the registration of choreography in Circular 52 available here.  In this circular, choreography is defined as “the composition and arrangement of a related series of dance movements and patterns organized in a coherent whole.”  Specifically, some common elements utilized for determining a fixed work’s protectability include creations that feature “[r]hythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as [on] a stage;” that feature “[a] series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole;” and/or ones that encompass a “story, theme, or abstract composition conveyed through movement” as well as an analysis on “whether the work “is present[ed] before an audience;” whether the work is “[p]erformed] by skilled individuals;” and, whether the work has any “[m]usical or textual accompaniment” to it (Copyright Office Circular 52).

If a work contains some or all of the above listed elements it is registerable choreography.  The dance routine must also be fixed in sufficient detail to enable it to act as a “template” for subsequent, uniform performances of the protected work.  This means that choreographic works provided to the Copyright Office for registration can be submitted as a video recording of the performance; a document containing “[d]ance notation such as Labanotation and Benesh Dance Notation;” or, as a textual, photograph or pictorial depiction of the dance (Copyright Office Circular 52).  For example, a laban score was accepted by the Copyright Office in 1952 for Hanya Holm to copyright her choreography in “Kiss Me Kate.”

There are also several types of dances and movements that cannot be protected by copyright.  For example, individual movements or dance steps, or even a few movements or steps, by themselves are not copyrightable. This includes a “set of movements whereby a group of people spell out letters with their arms,” “yoga positions,” “celebratory end zone dances,” a “basic waltz step,” or “the grapevine” (Copyright Office Circular 52).

Additionally, “social dances” are not protected by copyright.  “Social dances” are distinguishable from protected choreography based on who the intended participants of the dance are.  Generally, “social dances” are “intended to be performed by members of the public for the enjoyment of the dancers themselves;” while, registrable choreographic works are intended to be performed by “skilled performers before an audience.”  Some examples of social dances that are not protected by copyright include: “[b]allroom dances, [f]olk dances, [l]ine dances, [s]quare dances, [and] [s]wing dances” (Copyright Office Circular 52).  For instance, George Balanchine has submitted numerous videotapes to copyright his choreography.  It should also be noted that Martha Graham has placed copyright notices on performance programs in an effort to put the public on notice of her choreography copyrights.

Furthermore, “functional physical movements, feats of physical skill or dexterity, and ordinary motor activities” are ineligible for registration as choreography according to the Copyright Office.  Some examples of ordinary motor activities not registrable as choreographic works include: “[g]eneral exercise routines;” “[a]thletic activities, such as a […] tennis swing, a golf swing, or a unique slam-dunk maneuver;” [s]kateboarding or snowboarding tricks;” [y]oga poses and sequences; and, “[a] compilation of any of the above types of movements” (Copyright Office Circular 52).  In short, this means that individual dance steps that act as “building blocks” cannot individually achieve copyright protection; however, a complex choreographic work incorporating these individual “building blocks” may be copyrightable and registered.  This is done in order to stimulate creative and innovative subsequent works that incorporate these individual dance movements. Overall, there is potential for a creator to protect their unique choreographed work.  In particular, the work must be fixed in a medium whereby it can be perceived and the actual movements must go beyond ordinary physical movements or simple dance moves.   An individual wishing to achieve protection in a particular dance should consult with a professional in the area to determine what, if anything can be protected and the best methods to achieve and enforce these protections.

This article is not intended as legal advice, as an attorney specializing in the field should be consulted.

(c) 2019 The Jacobson Firm, P.C.

About the author

Justin M. Jacobson, Esq. - Vice-President, The Jacobson Firm, P.C. - Attorney Specializing in Entertainment, Sports, Esports, Fashion and Art Law. In particular, The Jacobson Firm, P.C. handles Trademarks, Copyrights, Contracts, Estate Planning, Music Business and Brand Development on behalf of creative talent and lifestyle brands.

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