About a year ago, I wrote my very first blog regarding copyright protection for choreography. In that post, I explained that even though dance is one of the world’s oldest art forms, the legal framework around copyright protection for choreography is still one of the least developed around. And, as our loyal readers will recall, the combination of law nerd/ex-dancer in me affectionately wished for the day that we would see a courtroom battle over choreography theft. Unfortunately for Beyoncé, the countdown may be over. (Cheesy pun intended.)
Most of you had probably never heard of Anne Teresa De Keersmaeker, a Belgian contemporary dance choreographer. That is, until the recent release of Beyoncé’s “Countdown” video. Almost immediately following the release of “Countdown,” Beyoncé faced allegations that she stole the choreography featured in her video from two of De Keersmaeker’s contemporary works, Rosas danst Rosas (1993) and Achterland (1990). While Beyoncé admits that De Keersmaeker’s works were “one of the inspirations used to bring the feel and look of the song to life,” her official statement — no doubt vetted by a team of lawyers — was careful not to admit that she (or, more appropriately, her team) actually copied De Keersmaeker’s choreography. Thanks to YouTube and those of you out there with way too much time on your hands, however, we can analyze De Keersmaeker’s claims for ourselves and determine whether “Countdown” crosses the line between inspiration and imitation.
First, take a look at Beyoncé’s “Countdown” video:
And then take a look at De Keersmaeker’s works featured in this split-screen comparison:
Yeah, that’s kind of hard to explain away.
Although De Keersmaeker claims that she is neither upset nor honored that Beyoncé copied her dance moves, she made a point to say that “there are protocols and consequences to such actions, and I can’t imagine [Beyoncé] and her team are not aware of it.” Is De Keersmaeker right about those consequences? That is, does Beyoncé’s “Countdown” video infringe De Keersmaeker’s copyright in her choreography? Let’s recap some of the things we have learned here at Law Law Land.
Choreography is, very explicitly, eligible for copyright protection. With that protection comes all of the rights and benefits of copyright ownership, including, among other things, the right to reproduce the copyrighted work, to create derivative works, to display the work and to publicly perform the work. However, these days choreography isn’t exactly the most lucrative of the arts, and, as The Hollywood Reporter points out, very few choreographers actually bother to register their works with the Copyright Office at all, and even fewer have had the stomach — or the wallet — to bring infringement cases to court.
Because we basically don’t have any courts telling us how to assess potential infringement of choreography (thanks for nothing, American justice system), we are left with two general questions: is the work before us actually protectable, and is the (allegedly) infringing worksubstantially similar to the copyrighted work?
The Copyright Act itself does not define “choreographic works.” And as you may recall, the Second Circuit acknowledges that “social dance steps and simple routines” are not copyrightable and offers the following definition of choreography: “the composition and arrangement of dance movements and patterns, [which] is usually intended to be accompanied by music.” Not terribly helpful. But, as De Keersmaeker’s choreography is, indeed, an “arrangement of dance movements and patterns” which is a hell of a lot more complex and original than the hora danced at your kid’s Bar Mitzvah, it seems safe to say that if any choreographic work qualifies for copyright protection, De Keersmaeker’s do.
And as that handy dandy side-by-side comparison of the “compositions and arrangements of dance movements and patterns” makes clear, it looks like Beyoncé’s choreographer was less “inspired” by De Keersmaeker’s works than trying to recreate them wholesale. That’s probably why, despite my best Internet sleuthing and with the exception of one small mention on her agency’s website, it is virtually impossible to find the name of the Beyoncé’s “choreographer” for the video. (Given all the negative publicity and multiple YouTube comparison videos, one can assume that this would not be a good credit to advertise.)
So on balance, if was a betting person — and these days, bookies will take bets on just about anything — I’d put my money on De Keersmaeker. The side-by-side comparison is damning enough. But the similarities between the works in set design, costuming, staging, and cinematography, while not necessarily relevant to whether the choreography itself was improperly lifted, is the kind of thing that makes a judge want to make an example of someone.
(On the other hand, the follow-up controversy over whether Beyoncé’s “Love on Top” video copied New Edition’s “If It Isn’t Love” — from a legal, if not a choreographic perspective — looks like flailing to me. In fact, comparing these two controversies seems like a perfect illustration of the elusive distinctions between ideas and expression, and between inspiration and infringement.)
Not surprisingly, negotiations between lawyers for De Keersmaeker and Sony (Beyoncé’s record label) have already reportedly begun. Inevitably, this thing will settle, and I still won’t get the courtroom battle I’ve been waiting for all this time. But disputes like this are still vital to creating an ongoing dialogue about the rights of choreographers.
Amazingly, producers will scrub every movie or television show for every little thing — be it trademark, logo, novel, screenplay, painting, song, or (these days) tattoo — that could give rise to an infringement claim, but this culture of “coverage” and “clearance” has long overlooked choreography altogether. The more that these sorts of claims are seriously raised and pursued, the faster producers, record labels, recordings artists, and studio executives will learn that, while you may get away with jacking someone’s dance moves for use in a clever YouTube tribute or dance floor dance-off, you can’t just claim those moves as your own, profit from them, and call it “inspiration.” In the end, this will mean more credit and compensation to choreographers for their efforts…even if it means Beyoncé has to get in trouble now.
As an aside, Beyoncé was reportedly four months pregnant when she filmed “Countdown,” while De Keersmaeker was also pregnant when she choreographed and filmed Rosas. Coincidence? Maybe. Actionable? Thankfully, no.