In my former lifetime, before I was a lawyer, I was a dancer (little-known fact — lawyers have hobbies and histories unrelated to the majesty of the law!). From my very first “bumble bee” recital routine to my internship with one of the premiere dance agents in Los Angeles, dance has consumed my life in every way imaginable. I shamelessly admit that, for me, even college drinking games often involved fouetté competitions with my dancer friends. But now that 4 a.m. rehearsals for Disneyland’s Main Street Electrical Parade have been replaced with late night brief writing marathons, like many other former dancers turned dance moms, I am thrilled by the resurgence of dance in pop culture. From So You Think You Can Dance to America’s Best Dance Crew, dance is undeniably hot right now. (Hey, it wasn’t long ago that the best we could get were the Fly Girls on In Living Color.)
The popularity of primetime dance shows has given choreographers a much-needed platform to showcase their talents and share their works with the world. For those of you who tuned into Season 7 of SYTYCD, no one will ever forget ballet dancer Alex Wong smashing Tabitha & Napoleon’s hip hop routine Outta Your Mind with all-star tWitch, or Robert Roldan and Allison Holker’s stunning performance of Travis Wall’s contemporary number Fix You. But for every piece of brilliance we are given from the likes of Mia Michaels, Wade Robson, Tyce Diorio or Dave Scott, just to name a few, there will be hundreds of knock-offs that blur the line between inspiration and imitation. I can’t even count the numerous renditions of Bob Fosse’s Steam Heat I have seen since the mid-80s, some absolutely fabulous, and many others…well, not so much. (For those of you familiar with the dance world circa 1985, how many horrific lyrical numbers did we have to sit through to Ice Castles (Through the Eyes of Love) and I Sing the Body Electric? And for those of you who aren’t, I promise you that was an awesome and highly-recognizable reference.) While many choreographers frequently voice complaints that “they” copied “my” piece, there is very little discussion regarding the legal implications of “borrowing” someone else’s choreography. And, unfortunately, this may be for good reason.
Explicit copyright protection for choreography is relatively new. Prior to the enactment of the 1976 Copyright Act, a choreographer’s rights in his or her work were unclear at best. Choreography was not even mentioned under the prior law, and a choreography piece could only be registered, if at all, as a type of “dramatic composition.” Finally, in the 1976 Copyright Act, Congress expressly included “choreographic works” among the categories of creative works eligible for copyright protection. Like any other protectable creative work, dance pieces are now protectable by copyright provided that they are an “original work of authorship” which is “fixed in any tangible medium of expression.” Today, choreography can be easily “fixed” in a home video recording, and the required number of copies can be effortlessly deposited and registered with the Copyright Office. (Choreography can also be “fixed” through the use of several complex and often expensive notation systems, some of which themselves make forlovely works of contemporary art.) Not surprisingly, however, given the novelty of the intersection between dance and copyright law, there are only a handful of cases that even discuss copyright protection in choreography, much less provide guidance for determining whether a competing piece of choreography infringes upon the rights of its predecessor.
While it is clear that a copyright owner retains the exclusive right, among other things, to reproduce and publicly perform his or her piece, rarely is it the case that another choreographer takes some else’s choreography and recreates exactly the same piece as if it were their own. Rather, more often than not, one choreographer will create a similar piece — usually to the same song — which they claim as their own original work. But when does this rise to the level of violating the law? The general test for copyright infringement is whether the infringing work issubstantially similar to the copyrighted work. In the dance context, to determine whether two pieces are substantially similar, one must first determine what constitutes protectable choreography in the first place. (A brief digression: copyright in choreography is not tied to the use of a specific piece of music. Theoretically, one can infringe another’s choreography by performing an infringing dance to an entirely different piece of music. At the same time, a choreographer can also find themselves in trouble for infringing the rights of the owner of the musical composition or sound recording depending on how, when and where the music is used. I know, nothing legal is ever simple. As my 4-year old always says, “you’re makin’ me a headache…”)
So what exactly is protectable choreography? We can probably all agree that it is not my husband’s attempts to show up my daughter with his slick moves in our kitchen. Nor would it consist of common or traditional dance steps that are part of virtually every dancer’s vocabulary. And, copyright law does not protect an idea, only the original expression of an idea. For example, Mia Michaels’ brilliant contemporary piece Gravity, which tackles the topic of addiction, would not automatically preclude another choreographer from putting together a piece to the same song which also incorporated the same theme. But beyond that, we are left with little guidance regarding what constitutes protectable choreography and how to determined if it has been infringed.
The Copyright Act itself does not even attempt to define a choreographic work. In one of the few cases to broach this topic, the Second Circuit acknowledges that “social dance steps and simple routines” are not copyrightable (all you cool kids who think you invented “the reject,” no dice) and proffers the following definition of choreography: “the composition and arrangement of dance movements and patterns, [which] is usually intended to be accompanied by music.” Hurray for the unhelpful and obvious! Umm, yeah, we all know that choreography is a series of dance moves. But what “series of moves” is sufficiently original to be worthy of protection? And what “series of moves” is sufficiently similar to the copyrighted “series of moves” to violate the rights of another? No court has ever said, which means choreographers and lawyers everywhere are left to work in a legal black box.
Finally, many choreographers, often concerned with creativity over business, may be surprised to learn that their employers actually own their choreography, and that their employer could prevent them from restaging their own piece. But, how can this be? It’s my piece! Without attempting to explain all the nuances of the work-for-hire doctrine, generally any work prepared by an employee within the scope of his or her employment is owned by the employer, and choreography is no exception. Even the heirs of the great Martha Graham were surprised to learn that they did not own the rights to many of her most famous works. Remember, dance is business too. Make sure your expectations and clear and in writing before giving up the eight counts!
If there’s any lesson to take home from this discussion, it’s that even though dance is one of the world’s oldest art forms, the legal framework around it is still one of the least developed around. With any luck, though, the renewed popularity of dance will soon bring us an epic courtroom battle that will offer choreographers a solid basis to protect their artistry. And you know what that means: dance-off!a