Unless You “Got the Moves,” Watch Your Step
Many of us know that “authors” can seek federal copyright protection, and many of us also know that “common law” copyright protection exists the moment a copyrightable work is created, but not many people understand what an “author” is within the meaning of the Copyright Act. An author does not need to be a writer or a painter — an author is simply the creator of an original expression in a work. Section 102 of the Copyright Act explains that copyright protection exists in the following categories:
musical Works, including any accompanying words;
dramatic Works, including any accompanying music;
pantomimes and choreographic works;
pictorial, graphic, and sculptural works;
motion pictures and other audiovisual works;
sound recordings; and
Numbers 1, 2, 5, 6, and 7 are pretty straight-forward, and many of us have seen messages telling us that copyright law protects written works, music, pictures, and movies. The other areas are less-known — particularly that a series of body movements can actually be copyrighted. This has not always been the case, however. Prior to the Copyright Act of 1976, choreography was not copyrightable subject matter, and the only way a choreographer could obtain protection against an unauthorized performance was to try and register the dance as a “dramatic composition.” The choreography had to, in a sense, tell a story, portray character, and depict emotion in order to be afforded protection.
Today, in order to be eligible for copyright protection, a choreographed dance must have been entirely originated by the author and must contain at least a small amount of creativity. This threshold is relatively low, so as long as a choreographer creates a choreographed routine of more than a couple moves and steps without copying another’s work.
Although Loie Fuller sued another dancer for performing her “Serpentine Dance” choreography in 1892, and Anne Teresa De Keersmaeker accused Beyoncé of stealing several of her ballet moves in 2011, historically choreographers have not aggressively sought to enforce their rights when it comes to others infringing their choreography.
Recently, however, Big Freedia filed a federal lawsuit against her former choreographer Wilberto Dejarnetti, seeking a declaration that she owns the choreography for seven dances the two worked on together. Similarly, rapper 2 Milly recently exposed video game developers Visual Concepts and Epic Games for incorporating his viral dance, the “Milly Rock,” into their games — NBA 2K18 and Fortnite, respectively. Visual Concepts includes the Milly Rock as a randomly occurring component of the NBA 2K18 game, but Epic Games designed the Milly Rock (or the “Swipe It,” as it is called in-game) to be an “emote” that can be purchased by Fortnite players for real money as of the Season 5 update. Similarly, Rapper BlocBoy JB recently exposed Epic Games for incorporating his “Shoot Dance” (made famous in 2017 when it was incorporated in Drake’s music video “Look Alive”) into the Fortnite Season 4 update (calling the dance “The Hype”).
So what is all the hype, after all? Why are some artists so worked up about others copying their dance moves? How does this notion of protecting choreography promote copyright law’s purpose of promoting the progress of science and useful arts? These issues implicate a series of questions that must be considered in turn when determining whether a choreographed work can be afforded copyright protection: (1) is the dance original, (2) is the dance “fixed” in a “tangible medium of expression,” (3) is the dance adequate to qualify as protectable choreography under the Copyright Act, and (4) does the choreographer legally own the dance moves?
The first question is easily answered — either the choreography is original or it is copied. Original expression is protectable, and copied material, without more, is not.
The “fixation” into a “tangible medium” requirement is also easily met, as many choreographers use their own unique form of written shorthand, or “labanotation,” to record the nature, structure, sequence, and timing of movements. Additionally, a choreographer can “fix” the sequence of movements into a tangible form by recording a video of the movements.
The Copyright Act does not protect a single dance move, but it does protect “choreographic works” — meaning a choreographer must include a series of more than just a couple steps or moves in order to qualify for copyright protection. Copyrighting individual steps would not advance copyright law’s purpose of promoting the progress of science and useful arts because such would afford choreographers a monopoly in single movements — thus severely limiting the scope of creativity in future choreographers. Dance would cease to exhibit a series of polished, recognizable moves and would evolve into an amalgam of unconventional, eccentric chaos (although this is an interesting visual). Dance would, in essence, cease to be “dance.” Thus, in order for a choreographed dance to be eligible for copyright protection, a number of dance movements and patterns must be combined into an expressive whole. Although there still exists the ethical dilemma that a particular dance “move” could be diluted or disassociated with the originating performer, this is not a consideration that the Copyright Act currently contemplates.
Oftentimes, choreographers work with directors or producers in creating a show that incorporates the choreography into a number of other elements. The essential question in these situations is whether the choreography was developed as a “work made for hire” or as a work by an “employee.” When the choreography is created in the normal course of regular employment, it is considered a “work made for hire,” and the employer enjoys authorship of the work rather than the employee who created it. However, when a choreographer is specially commissioned to choreograph particular dances, then the work is not considered a “work made for hire” unless there is a signed written agreement expressly stating that the work is a "work made for hire."
There are a number of legal issues to consider when deciding whether a choreographer enjoys copyright protection in a choreographic work. As we see more and more infringement allegations pertaining to choreographic works pop up in the media, perhaps game developers, performers, and other choreographers will begin to be more cognizant about whether a particular move can and should be used. The best rule of thumb is to avoid stepping on anyone else’s toes — stick to the moves you know.