For over two hundred years the courts refused to find dance to be a useful art.

All male Courts provided copyright protection to Playboy in the same year they denied copyright protection to choreography.  (Yes, women are a crucial part of the justice system.)

The United States Constitution gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their respective writings. . . .” U.S. Constitution. art. I, sec.8, cl. 8.

Choreography and Copyright

Can your copyright a choreographed piece?  You betcha! Follow Balanchine’s Lead
How do you copyright a choreographed piece? (It only costs $35.00)
Fixed in a tangible medium of expression
Steps to secure copyright with the U.S. Copyright Office
Copies of the work must be included for copyright protection
Which performance? – Revisions need a second filing to protect them, too!
What are other choreographers doing?
Head the words of Agnes de Mille – Make clear style and dynamics!
What is choreography? You know it when you see it but does the copyright office?
Classic definitions of choreography
Fix your dance in a tangible medium of expression
Copyright your revisions – or they’re NOT protected!
A “Substantially Similar”work infringes upon a copyright
The Balanchine Trust and Performing a Balanchine Ballet
I want to perform a Balanchine ballet, can I obtain the rights from ASCAP?
Licensing Associations

Can your Copyright a Choreographed Piece?

Absolutely,  you may and should  copyright a choreographed piece, at least since January 1, 1978, in the United States. This was the enactment date of the 1976 Copyright Act. Before the 1976 Copyright Act copyright of choreography was limited to pieces with dramatic content. This meant abstract choreographies, such as those of Balanchine, were ineligible for protection by federal statutory laws of copyright. After two hundred years the United States Congress included choreography as the works of art protected by the law of copyright in a federal statute, 17 USC 106, the Copyright Act of 1976.

Ballet has always been an international art form and has retained an international audience. Dance did not need global communications systems and an internet to unite it. It has been united by its international origin and performed in a universal language since its creation in the 16th century.

However, the law of copyright is not universal. What is copyrightable at one point in time in one country may not be copyrightable in another country in another time. In the United States the determination of whether a copyright exists will be decided under the law of the country of origin. Itar-Tass Russian News Agency v. Russian Kurier, Inc. and Bridgeman Art Library, Ltd. v. Corel Corporation involved issues of copyright infringement. Both cases held that the existence of a copyrightable interest will be governed by the law of the country of origin (Russia and England, respectively), while the issue of infringement and availability of relief with regard to an infringement claimed to have occurred in the United States will be governed by United States law.

In 1952, Hanya Holm became the first choreographer in the United States to gain copyright protection for her choreographic work by registering a notated score of her choreography for the Broadway musical, Kiss Me Kate as a dramatico-musical composition. While abstract choreography could not be registered pursuant to the federal law of copyright, choreography which was a part of a dramatic story or was itself a dramatic story, could be registered.

The History of Choreography Copyright in the U.S.

Mr. B Because abstract choreography could not be protected by copyright until the enactment of the 1976 Copyright Act Balanchine believed most of his works were ineligible for copyright. It was in 1978, after a heart attack that Balanchine sought the advice of an estate attorney believing that his ballets could not be bequeathed by will. He was informed that in fact they could be protected by copyright once registered and bequeathed. Balanchine passed away five years later, on April 30, 1983. His will acknowledges “that dance has always been created and handed down through personal contact,” but it bequeathed his ballets to his chosen heirs who created the Balanchine Trust

Balanchine choreographed over 400 ballets, most of them abstract without plot and presented as abstract performances which enveloped the dancer and the audience in the performance rather than the plot. The Blanching Trust licenses roughly seventy of these ballets. George Blanchine co-founded both the New York City Ballet and the School of American Ballet and is considered to be the father of American Ballet.

Why Was Choreography not Covered by the United States Copyright Act?

The answer to the judicial prejudice against dance can be found in some of the legal opinions written by the judges who denied copyright protection to the choreographers. The law of copyright is written into the United States Constitution which states:

The United States Constitution gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their respective writings . . . .” US Constitution. Art. I, sec., CL. 8.

This clause was enacted by the framers of our Constitution with very little discussion at the Constitutional Convention. Their opinions had been formulated years before and this particular clause required little discussion. Many of the colonies had already embodied their position on the issue of copyright in their own statutes and constitutions prior to the Constitutional Convention and this direction was consistent with the direction many of the colonies had taken with regard to copyright.

The purpose of copyright was to promote the public good by encouraging the development of creativity by compensating the creator. The writings of Thomas Jefferson and James Madison on this issue indicate that it was their belief that a copyright should last no longer than the life of the creator, and a fourteen year term was the original grant with another renewable term of fourteen years. They were strongly against a long term of copyright and wanted to see the works returned to the public domain as quickly as possible.

Under common law and the 1909 Copyright Act, which was effective until 1978, choreography was ineligible for the protection of copyright unless it was “dramatic” or “dramatico-musical.” The 1909 Copyright Act provided copyright protection for abstract musical works and paintings but none for abstract dance. Music did not have to tell a story. Paintings did not have to tell a story. Dance, however, did.

Martha Graham – Not Copyrightable

The Courts in their interpretation of the Constitutional Clause on Copyright did not find that abstract dance promoted “the progress of science or the useful arts.”

This position was applied in 1867 in California in Martinetti v. Maguire. This was not an abstract piece but was dramatic. The court found the dramatic part of the presentation immoral and as such promoted nothing useful for the arts and defined the work as an “indecent ballet” by the court.

There is no evidence the Court enjoyed it or saw the work in question.

Gypsy Rose Lee – No Copyright Said the all Male Court to Gypsy Choreograph but YES to Playboy!!!

Dane v. M & H Co. the New York Supreme Court in 1963 denied copyright to the choreography of Gypsy by the all male Court.

Dane v. M. &. H. Company, 136 U.S.P.Q. 426 (Copyright Decisions, 1963-1964) (N.Y. Sup. Ct. 1963)

The principal basis of plaintiff’s claim for infringement of a common law copyright is that she created a musical choreographic composition [i.e., military/striptease dance number, which she had used to audition for a role] which combines music and action in such a manner as to provoke an emotion, portray a character and have a theme, or tell a story. The foregoing rule has been interpreted by our courts so as to permit choreographic works to be subject to copyright under Title 17 U.S.C.A., section 5, class D, which provides for recognition of “dramatic or dramatico-musical composition”.

The court further finds that plaintiff was not known in the theatrical world for her ability to create choreographic compositions and that when she performed at the audition it was her skill as an actress or dancer which she was trying to sell rather than a piece of property. Plaintiff has testified that no part of her number was ever reduced to concrete form and that she never had any other material copyrighted during her career. While this alone would not preclude plaintiff from her right to assert her ownership to the piece of property, the court finds that plaintiff’s material, even if same could be characterized as a choreographic composition, of itself would not be subject to copyright protection.

The words “dramatic or dramatico-musical composition,” as used in the statute, must be held to include openly to representations and exhibitions which tend at least “to promote the progress of science and useful arts.”

Where a performance contains nothing of a literary, dramatic or musical character which is calculated to elevate, inform or improve the moral or intellectual natures of the audience, it does not tend to promote the progress of science or the useful arts. … Thus, not everything, put on the stage can be subject to copyright. While plaintiff’s performance was no doubt amusing and entertaining to many, it does not fall within the purview of the statute as a production tending to promote the progress of science and useful arts. [at p. 429]

Playboy 1963 – Copyright granted!  The all male court found Playboy worthy of protection.

Forget abstract dance, Gypsy Rose Lee, Ballet.

The finding that ballet did not promote the “useful arts” was maintained in 1903 in New York in Barnes v. Miner. This work was deemed immoral because women changed clothes on stage. A choreographer could present their work, they just could not copyright it if it were deemed immoral by the judiciary. If it was the court’s intention to limit the viewing of an immoral work it would be logical to uphold the copyright. Refusing to uphold the copyright of “immoral works” would serve to spread the work rather than limit it. The Court appears more interested in punishing the creator than benefiting society in its own terms. The purpose of copyright is to promote the public good by encouraging the development of creativity by compensating the creator. This court promoted what it considered to be public immorality by allowing the copying of an immoral work. The position is illogical!

In addition to the refusal to permit copyright to “immoral” dramatic works the Court refused copyright protection to abstract dance pieces without dramatic content in Fuller v. Bemis, a 1892 New York case.

In Dane v. M & H Co. the New York Supreme Court in 1963 denied copyright protection to striptease audition number done in a military style for the stage version of “Gypsy”. The Dane Court resurrected the ancient argument that striptease dance did not “promote the progress of science or the useful arts” at least sixty years after courts had abandoned that as a standard for copyright. The Court noted that the dance in question “did not elevate, cultivate, inform, or improve the moral or intellectual natures of the audience.” Just the year before a major copyright revision was enacted Savage v. Hoffmann, which was decided in 1908. Here the work was denied protection because it was deemed to be an abstract choreographic work.

It was not until 1976 that abstract choreography was granted the protection of copyright commensurate with that of other forms of abstract art!

The Ballets Russes

Much of the judicial prejudice against ballet in this country can be traced to the publicized accounts of the Ballets Russes. Nijinsky danced professionally for only 10 years (1907-1917), and his reputation as a choreographer was established by only four ballets, all choreographed for the Ballets Russes between 1912 and 1913. Sergei Diaghilev, was his open lover and the director of the Ballets Russes. Nijinsky choreographed The Afternoon of a Faun, which contained suggestive movements. The premiere of his Rite of Spring, choreographed to Stravinsky’s dissonant score, caused audiences to riot and storm out of the theater. These accounts found their way into news stories in the United States. However, there was very little true ballet in the United States until the arrival of the Ballets Russes. Prior to that time dance was presented principally in the domain of burlesque.

Nijinsky appeared in nine roles in New York during the two short seasons in which he was seen the the Ballets Russes. In Scheherzade in which Nijinsky played the slave his exotic eroticism was much discussed. The police court of New York was outraged by this performance both because of its eroticism and harem which contained both black and white concubines. The police court had threatened that the harem should be segregated, the blacks from the whites. The mattresses which were placed on the set outraged the police magistrates and they wanted them replaced with rocking chairs and the divans of the Sultans were to be removed completely. Nijinsky, who played the Negro slave never touched the Sultana.

After Nijinsky and Diaghilev separated he became overwhelmed by schizophrenia. It was during this time that he kept a diary for six weeks while he was in a hotel with his wife and young daughter in St. Moritz. The diary was initially published in part in 1935 and ultimately published in its entirety. . “‘I am an Egyptian. I am an Indian.’ he wrote. “I am the God of Dance.” I am God.” ‘I am a sea bird. I am a land bird. I am Tolstoy’s tree. I am Tolstoy’s roots. Tolstoy is mine. I am his.’

“I’m alive and therefore suffer because men do not know the importance of life…. I’m not an ordinary man — I’m a dancer. You will understand me when you see me dance.”

His wife, Romola, a Hungarian heiress whom he married during a visit to Buenos Aires, saw him committed and at times cared for him herself for the last thirty years of his life. The couple had a daughter, Kyra. He signed his diary entries: “God-Nijinsky.”

The Ballets Russes opened in New York in 1915 and again in 1916 to an audience that had never seen Russian Ballet performing The Firebird, La Princesse Enchanteée, Le Soleil de Nuit and Schéhérazade. Nijinsky and Diaghilev were having personal difficulties which were made known to a staid and puritanical society. The exoticness of the costumes, the personal relationship of Nijinsky and Diaghilev, and the lack of familiarity with ballet contributed to the opinion the judiciary had of dance. It is doubtful that many if any of the judges who wrote the opinions on dance ever witnessed a ballet.

Nijinsky danced on stage for the last time in Buenos Aires on September of 1917; he forever disappeared from the stage in his last performance of Petrushka, in which he was slain by the cruel Moor.
Ninjinsky continues as one of the grand legends of ballet. There is no film of his dance. In the dance world he lives as a muse who could leap into the air and hover briefly before descent. In the judiciary he represented immorality and depravity. His reputation and that of the Ballets Russes impacted the judicial opinion of ballet.

How do you copyright a choreographed piece?

You protect a choreographed piece just as you would protect any visual artistic presentation. Every law governing copyrighted works applies to choreographed works. However, there are extremely few cases interpreting the 1976 Copyright Act which finally made ABSTRACT choreographed works copyrightable by the federal copyright statute.

The United States Copyright Office is a division of the Library of Congress. They can be reached at Copyright.gov. This is an easy to navigate website with more information than you probably want or need. There is a section entitled “How to Register Performing Arts Works.” It is important to note that it takes but $35.00, a little time and effort, and a video camera to register a work of choreography. You do not have to have notation, but that is nice.

You may register via the internet.  Link here for list of up-loadable electronic formats:  Electronic Copyright Office.  It should be easy to upload a video with the broad range of electronic formats acceptable by the United States Copyright Office.

Privacy and Copyright Registration

It is important to understand Copyright Registration is a Public Record.  If you have information you wish to keep private, do not place it on your copyright registration.  Google does index copyright records.

Any information provided in the rights and permissions section of the application will also be made available online, but providing rights and permissions information is optional. Applicants who want to include rights and permissions information but do not want to provide personal details can use third-party agents, post office boxes, or designated email accounts. If someone else submits an application on your behalf, it is still your responsibility to ensure that information that you want to keep out of the public record is omitted. In certain cases, it may be permissible to register a claim in a work either anonymously or pseudonymously (under a fictitious name). Other categories of information in copyright applications that may be made available online include the following: type of work, registration number, title of the work, author, authorship, preexisting material date of creation, date of publication.

Because your copyright registration is a public record, others can access it and may create alternative means to make the information in it more widely available. The Copyright Office is not responsible for the form or the substance of third-party redistribution of Copyright Office records.

Definition of Copyright

The copyright office attempts to define choreographic works, something neither the United States Congress has done, nor has recent case law. These definitions, while not legally binding are intended to aid the applicant in proper categorization of their works.

Choreography is the composition and arrangement of dance movements and patterns usually intended to be accompanied by music. As distinct from choreography, pantomime is the art of imitating or acting out situations, characters, or other events. To be protected by copyright, pantomimes and choreography need not tell a story or be presented before an audience. Each work, however, must be fixed in a tangible medium of expression from which the work can be performed. Note: Sports games and physical-fitness exercises are not considered choreographic works.

It is important to note that generally speaking the United States Copyright Office does NOT involve itself in the screening of applications for copyright. They do not make a substantive determination as to whether or not the material is copyrightable or infringes upon the copyright of another. They provide a locus for registration and for the deposit of the work for which an application for copyright is made. There are some legal cases which indicate that a copyright office will refuse to register a copyright, but they are the rare and unusual exception and not of recent date. They are simply an historical oddity. Two people have often copyrighted the same material. This is of no consequence to the United States Copyright Office. This is simply a place in which to register your work, not a determinor of the copyrightablity of your work.

Canadian Definition of Copyright as a Technical Work:

“Choreography” could be described as the steps of a dance put together for performance, or the art of composing dance or, as expressed by Elise Orenstein of the Canadian Association of Professional Dance Organizations,
“an arrangement or an organized thought in time and space which uses human bodies as design units”: see Minutes of the Subcommittee of the Standing Committee on Communications and Culture on the Revision of
Copyright, No. 15 (1985.06.14), 1st Sess., 33rd Parl. (1984-85), at p. 87.

Preregistration of Choreography Not a Named Category

Choreography is not a named category for pregistration.  However, you still may want to consider the option to pre-register your work with the United States Copyright Office:  Preregistration.

Consider this option if

• you think it’s likely someone may infringe your work before it is released; and
• you have started your work but have not finished it.

Pursuant to the provisions of the Artists’ Rights and Theft Prevention Act of 2005, the Copyright Office is accepting preregistration of unpublished works that are being prepared for commercial distribution for types of works that the Register of Copyrights determined have had a history of pre-release infringement. The Office conducted a rulemaking and has issued an interim regulation on preregistration of unpublished works (read more on rulemaking).

Preregistration is not a substitute for registration. Its purpose is to allow an infringement action to be brought before the authorized commercial distribution of a work and full registration thereof, and to make it possible, upon full registration, for the copyright owner to receive statutory damages and attorneys’ fees in an infringement action.

A person who has preregistered a work is required, in order to preserve the legal benefits of preregistration, to register such work within one month after the copyright owner becomes aware of infringement and no later than three months after first publication. If full registration is not made within the prescribed time period, a court must dismiss an action for copyright infringement that occurred before or within the first two months after first publication.

You may submit a work for preregistration only if it meets these three conditions:

1. the work must be unpublished
2. the work must be in the process of being prepared for commercial distribution in either physical or digital format, e.g., film copies, CDs, or computer programs to be sold online; and
3. the work must be one of the following types:

• motion pictures
• sound recordings
• musical composition
• literary works being prepared for publication in book form
• computer programs (including videogames)
• advertising or marketing photographs

An online application, which includes a certification of a reasonable expectation that the work will be commercially distributed and that the information given in the application is correct, anda nonrefundable $115 filing fee.

NOTE:  The filing fee will not be refunded whether or not the preregistration is ultimately made.

Fixed in a Tangible Medium of Expression

The statute governing copyright requires that works to be eligible for protection, must be “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Two copies of this fixation must be deposited with the Copyright Office when the copyright is registered.

A review of congressional debate on the depositing of copies which are fixed in any tangible medium of expression imply that many, many forms of fixation will be accepted. It is conceivable that even story boards could be used, however, this would be an ineffective medium of expression to protect choreographed work or to prove to a jury that the choreographed work had been infringed upon.

In order to obtain the statutory right of copy or copyright protection the following steps must be taken.

1.   A completed application which will be either a Form Performing Arts or a Short Form for the Performing Arts. These forms have detailed general instructions accompanied by line by line instructions (beginning to sound like a 1040, well it is the US Government) which can be downloaded from the website.

2.   The fee for copyright is a $35 payment to “Register of Copyrights,” which explains why people copyright so many uncopyrightable things.

3.   You may register online at Electronic Copyright for $35.00.  You may also register your work in hard copy if you wish for a cost of $65.00.  Forward two nonreturnable copy(ies) of the material to be registered must be filed with the Copyright Office.

4.   If you are registering a single stand alone work the process is the easiest. If you are registering a work that is an element of another work, it is only slightly more complex.

5.   Remember, registering the copyrighted choreography does not register the underlying music, costumes, set decoration, or lighting. It simply registers the choreography. Be sure you have the proper licenses to use the underlying music!

6.   Register your work with the Electronic Copyright Office of the United States:

Library of Congress Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000

Your registration becomes effective on the day that the Copyright Office receives your application in good order, payment, and copy(ies). If your application is in order, you will receive a certificate of registration in four to five months.

A completed application which will be either a Form Performing Arts or a Short Form for the Performing Arts. These forms have detailed general instructions accompanied by line by line instructions (beginning to sound like a 1040, well it is the US Government) which can be downloaded from the website.

Nonreturnable Copies of My Work Must be Included! What does that mean?

There are several ways of depositing the required copy of your work. First, understand why you are depositing your work with United States Copyright Office. Obviously, the answer is to obtain copyright protection, because you do not want someone lifting YOUR work! Remember, however, the burden of proof will be on you to prove by a preponderance of the evidence that the work taken was your work. You will rely on this deposited copy as one source of evidence of the elements and components of your work. Keep this in mind as you decide how to record your work for the purpose of copyright protection.

Notation: Notation is an acceptable method of registration. The two modern and recognized form or notation are Labonotation and the Benesh notation. These two forms are in no manner the suggested or required form of notation. There may be a reversion to the historical notation systems or notation may be one of your own creation, (if you use your own notation deposit with a key). Nijinsky recorded The Faun in his own notion system known only to him 1915. It was not deciphered until 1987. You may simply notate your choreography in longhand as a narrative. However, the best method for protection may well be a combination of notation, narrative and film . You may deposit you notation with the U.S. Copyright Office.

Video: You may also deposit a videotape formerly known as film. The act of depositing the videotape does not copyright the underlying music. Only one performance will be recorded by the deposit of a film or videotape. Agnes de Mille has noted that films for copyright registration purposes “make clear style and dynamics.” This could best be done with a film supported by notations and interpretative directions of the choreography in narrative. A film of one performance may not be representative of the true choreography.

Acceptable Electronic Formats.

Which Performance? – Revisions – Protect Them, Too!

The same conscientiousness and observation of detail required in notable choreography is also required in its protection by copyright. The 1976 Copyright Act provides that “each version constitutes a separate work,” so long as it has been fixed. For works “prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time.” Different copyrightable works will exist based on the same work notwithstanding the dance community’s recognition of one work as “the” accepted version.

If your work has evolved and grown into something different from its original creation, deposit a copy of this version!

What are Choreographers Doing?

Susan Stroman of Stroman Productions, Inc. who choreographed The Phantom of the Opera, The Night They Raided Minsky’s, Crazy for You, Contact, the Musical and The Producers submits to the Copyright Office: “choreography, blocking diagrams, line drawings, and statements defining dramatic purpose of compositions.”

You may check what known choreographers are doing by linking to the Online Copyright Catalog for Performing Arts and typing in the name of the choreographer or the work. However, please note this registry is a little loose. Sometimes the author’s first name comes first, sometimes it comes last, sometimes a work is registered in the producer’s name. You will have to be patient and try various entries in many instances.

What is protected?

Historically costumes, lighting, and scenery, are not protected. In some instances the expression may be deemed to be that of the dancer as opposed to the choreographer. If expression is important include it in your notation.

Head the Words of Agnes de Mille – Make clear style and dynamics!

Agnes de Mille, born in 1909, choreographed for Broadway productions as well as for the American Ballet Theatre, Ballet Russes de Monte Carlo, and the Royal Winnipeg Ballet. Agnes de Mille choreographed the musical Oklahoma! The musical has earned over $ 60 million. Oklahoma’s producers paid de Mille a one time fee of $15,000, for her work. She did not contract for a percentage of the royalties and agreed to that amount. The estates of Rogers and Hammerstein, who scored the musical still receive substantial royalties although the recent Broadway production closed within weeks.

What is choreography?

While there is no statutory definition of choreography the dance literature abounds with definitions. While no one can predict which definition the courts will adopt, (and they may never be required to do so) the definition will no doubt come from dance literature as supported by expert testimony. We do know what choreography is NOT and that is a beginning.
Exercise routines are NOT choreography and will not be protected as choreography.

Extemporaneous dance is not copyrighted under the federal statute although there may be an opportunity for a state action.
Ballroom dance and folk dances are not copyrightable.

Why is the definition of choreography important?

Because the statute only allows copyright protection to “choreography” and if what is registered is outside the scope of the legal definition of “choreography” it is not protected by the federal laws of copyright. It is possible to register something that is not protected by copyright.

The argument that because choreography is copyrightable so should football be has historically fallen on deaf ears. Perhaps the simplest and most poignant analysis of the football/choreography dichotomy is found in the statement, “No one bets on the outcome of Swan Lake. It always ends the same way.” The argument was cited in the Canadian case of Canada in Re Royalties for Retransmission Rights of Distant Radio and Television Signals (1990), 32 C.P.R. (3d) 97 (C.B.), the Board (majority), at p. 138: .[Footballe is not a] “choreographic work, because, unlike a dance, a sporting event is for the most part a random series of events. The unpredictability of the action is inconsistent with the concept of choreography.”

The closest legal precedent has come to creating a definition for choreography is found in the Horgan v. Macmillian, Inc., 789 F.2d 157 (2d Cir.1986) case. Here the court was guided by the definition employed by the United States Copyright Offfice:

The Copyright Office defines choreography as the composition and arrangement of dance movements and patterns, usually accompanied by music… dance is static and kinetic successions of bodily movement in certain rhythmic and spatial relationships…individual building blocks of dance are not copyrightable…These building blocks include social dance steps, simple routines, and individual ballet steps.

Classic Definitions of Choreography

“Choreography” could be described as the steps of a dance put together for performance, or the art of composing dance or, as expressed by Elise Orenstein of the Canadian Association of Professional Dance Organizations “an arrangement or an organized thought in time and space which uses human bodies as design units”: Minutes of the Subcommittee of the Standing Committee on Communications and Culture on the Revision of Copyright, No. 15 (1985.06.14), 1st Sess., 33rd Parl. (1984-85), at p. 87.

“A choreographer of classical ballet has a specific movement vocabulary to work with. Like notes of music, however, these same steps can be put together in an infinite number of combinations. The prescribed steps can also be modified, as in contemporary ballet and modern dance, or repeated in different directions or done by a variety of dancers. In other words, the same step will look different in a dance depending on what step come before and after it; the direction or tempo in which it is executed; whether it is performed while turning or leaping; what the rest of the body is doing at the same time; and how many dancers are doing it simultaneously. In short, what makes choreography interesting -instead of repetitive and boring- is the combination of the steps.” Mary Kerner, Barefoot to Balanchine – How to Watch Dance (New York, Doubleday, 1991), at pp. 132-133:

“Choreography is the composition and arrangement of dance movements and patterns, and dance is static and kinetic successions of bodily movement in certain rhythmic and spatial relationship”: Copyright Law Reporter (New York, CCH, 1991), at no. 625, and needs not to tell a story in order to be protected by copyright.

Martha Traylor perceives dance as a “planned movement, set into a time frame, for the benefit and enjoyment of the passive observer.” She notes that this broad definition of dance would provide statutory copyright protection for everything from circus productions and stage movements of actors to figure skating. Martha M. Traylor, “Choreography, Pantomime and the Copyright Revision Act of 1976,” New England Law Review 16, 2 (1981): 227-255, 229.

Copyright Protection

Is Copyright Protection exclusively federal or do state common law rights exist?

In order to receive copyright protection after Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), a work must be original, creative, within the proper subject matter, and fixed in a tangible medium of expression. Specifically the creator “must [independently] create the work with [his] own skill, labor, or judgment and exhibit a “modicum of creativity.” However, “quality, aesthetic merit, ingenuity, and uniqueness are not considered in determining the copyrightability of a work.”

In Texas you retain the rights of common law “misappropriation.” This occurs when someone who is in competition with you appropriates your creation made with the expenditure of labor, skill, and money. This common law right protects ballet works not covered by the federal statute. The Federal statute refers to works that are fixed in a tangible medium, published or to be published. This excludes much of ballet. IN ballet the works often reside in the choreographer’s head and in the actions of the dancers. Nowhere else. You would also have a common law state cause for unjust enrichment. For improvisational performers this state actions for a violation of their right of copy to their work may be their only recourse. State common law can inquire into the authorship and qualities of improvisational performance. For a common law copyright action there must be a clear demarcation between audience and performer. It cannot be brought for using words from a conversation.

California has a statute that clearly grants common law copyright protection to improvisational performers. The statute provides that “the author of any original work of authorship that is not fixed in any tangible medium of expression shall receive exclusive ownership in the representation or expression thereof. See Cal. Civ. Code 980 (a)(1) (West. Supp. 1997).

Copyrights exist outside the scope of the federal statute. When this occurs you are not without remedy, you may pursue your remedy in state court for violation of your right to your copy of your work for misappropriation, unjust enrichment, breach of contract, common law copyright, or possibility right of publicity, which is the right to control commercial exploitation of your name, likeness or other parts of your image.

But what if its not fixed in a tangible medium of expression? What if its not registered?

Choreographers in the United States do have some protection under common law for works prior to fixation and registration with the Copyright Office. In order to prevail upon a common law right of copy, or a right for an unregistered work, the claimant must demonstrate what the work was which was copied. This can be difficult, although not impossible to do. The lack of fixation gives rise to the common law theory pursued in state courts.

State common law protection for choreography is not a “new” idea. Before the federal statute embraced choreography as a copyrightable performing art, unpublished works received copyright protection under state common law.

Section 301(a) of the 1976 Act preempted all state copyright laws which are PUBLISHED “regardless of whether or not [the work] had been published.” “Publication” is defined in the 1976 Act as “the distribution of copies … of a work to the public,” but not as a “public performance or display of a work.” Choreography that is not recorded or notated is an unpublished work Section 301(b), protects those works not fixed in a tangible medium of expression, like choreography which has not been notated or recorded on film or video by state common law remedy. Consequently, choreography which is only publicly performed, and therefore, not published, would remain protected by state copyright law until the choreographer either notated or recorded the work.

Joseph Taubman finds that common law protection of unregistered dance works will continue in view of practices within the dance community. Taubman argues that this common law copyright will continue to have an important and necessary role for choreographic works which are not fixed. “Choreography Under Copyright Revision:The Square Peg in the Round Hole Unpegged (1980), 10 Performing Arts Review 219, at p. 241.”  See Also work on Canadian Copyright.

Visible Medium of Expression – Are They Serious?

You cannot preserve a dance by teaching its movements, memorizing its movements, or by setting them on your pupil. The movements and patterns in the dancer’s or teacher’s mind will not meet the fixation requirement nor does the performance in public of the work: Unfixed choreography will not be entitled to copyright protection under the Act. “It vanishes promptly upon performance. The choreographic work transmitted traditionally, ie orally, is impermanent in form in that there is no record of it following performance. It is impermanent by reason of non fixation”: Joseph Taubman, Choreography under Copyright Revision: The Square Peg in the Round Hole Unpegged (1980), 10 Performing Arts Review 219, at p. 241.

What is my work and what is someone else’s work. Or when am I copying Fosse and when am I simply influenced by him?

The Copyright Law requires that a work be an “original work of authorship” in order to be eligible for copyright protection. The classic test of originality for all works is not novelty, but “whether the production is the result of independent labor.” The test in choreography as to whether an act of infringement has occurred is whether the copied work is substantially similar to the original work. This was enunciated in the Second Circuit. The appellate court held that the proper test for choreographic copyright infringement was the substantial similarity test.

The burden to prove that a work was copied falls on the creator of the work. The creator must prove by a preponderance of the evidence that their choreography was copied. Remember this when you are depositing your copies and and revisions of your work.

What is substantial similarity:

The rights you are given by the 1976 Copyright Act are: Under the 1976 Act, after an author registers his work he has the exclusive right, subject to fair use, to do the following:

• The exclusive right “to perform the copyrighted work publicly” (Section 107); or,
• As with films of the work, the right “to display the copyrighted work publicly.” (Section 108).
• Reproduce the work in copies; prepare derivative works based on the copyrighted work; distribute copies by sale, lease or other transfer;
• Works of “substantial similarity” will be deemed to have infringed upon your copyright. This is determined by comparing the allegedly infringing performance with the protected work.

How can anyone decide if a work is “substantially similar”

That’s awfully subjective. If a person had “access” to your work, that means if they have seen your work, your burden of proof that an infringement has occurred with regard to your work, has been reduced. The degree of similarity required varies according to proof of access, ( 17 USC Section 109). So if your work has been viewed by the alleged infringer there is a greater presumption that copyring has occurred than if they have never seen your work.

The more complex definition of “substantial similarity” may be worth the effort it takes to understand, in as much as this is how copying MAY be judged. There are too few litigated cases of copyright infringement for choreography for anyone to know specifically how this will be determined.

Nimmer uses two approaches to the “substantial similarity” test. However, in both tests he uses quantitative and qualitative factors in this determination. For example how much a person takes is relevant UNLESS the taking is of the heart of the piece in that instance the qualitative taking can create an act of infringement. In one he looks at the whole and evaluates whether “substantial similarity” occurs. In the other he looks at the individual parts and evaluates whether “substantial similarity occurs. He names these two approaches “fragmented literal similarity” and “comprehensive nonliteral similarity.” Fragmented literal similarity exists when the defendant precisely copies specific elements of the plaintiff’s work. The issue in a fragmented literal similarity case is whether the defendant has taken a portion of the plaintiff’s work sufficient to constitute infringement.Id. at 13-52. 3 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT

If you steal the heart and sole of a piece and it is but a small portion of the piece that violates the qualitative standard. If you steal a large portion of a piece that violates the quantitative portion of the standard. Copyright infringement is decided on a case by case basis and that makes it very, very difficult. The world of dance operates on a shoestring and a handshake. This is not a litigious world and it is a small world. If you steal someone’s work it is often “handled” in manners outside the courtroom and more effectively than those anonymous parties suing one another in a court of law.

Similarly, how similar, how different, how many variations? What counts as “substantial similarity” and who makes that determination?

Think of acts of copying as aligning themselves along a spectrum or being aligned from stage left to stage right. Those on stage left are virtually impossible to differentiate from the original with a performances consisting of:

1. The identical movements by the same ensemble of dancers as provided in the fixation of the protected work, or
2. The identical movements by the same ensemble of one or more discrete sections, movements, or “variations,” as fixed in the notation or other medium.

On stage right exists choreograph of no discernible similarity, other than the use of some of the same standardized steps, and not in any noticeably similar sequence.
These are not the cases in which there is likely to be great dispute. Those clearly infringing copyright will generally respond to a demand to “cease and desist” and those clearly not infringing upon the copyright of the original will continue with their performance. Few dance companies can afford frivolous litigation.

It is those cases which are positioned between the two extremes are fertile ground for dispute and conflict. Suddenly, the notion that copyright law is decided on a case by case basis is given life in the world of dance! Copyright infringement is determined in light of each individual case. There is no one test for similarity. The original will be viewed, the copy will be viewed. Experts will testify as to their similarity, for your side, and experts will testify as to their differences for the side of the alleged infringer. Certainly, you will testify. A key piece of evidence to be assessed by the jury was whether the copyist had access to your work. A jury will decide whether or not your work has copied and infringement has occurred.

Derivative Ballet Works

Many works of ballet are in the public domain. We know and love these works.  For example: the generic Raymonda “cembalom” variation bu Dolin is in the public domain.

There is a version choreographed by Keith Lester. Most of the versions seen today are “after Dolin”, but Dolin, it would appear, was “after Lester”. Some versions are presented after Lester, in a choreographic pedigree that goes back to 1936, but I don’t know that

Lester (b. 1924) does not appear as a copyright holder  on his choreography.

It is not uncommon for a choreographer to expand upon an work that is in the public domain. This is known as a derivative work. If a choreographer created a derivative work from a work covered by copyright this would be an infringement of copyright.

But when the basis is a work which is in the public domain, such as Sir Frederick Ashton’s Cinderella, the choreographer obviously cannot copyright the underlying work. However, the reformation of the work, the transformation of the work or the adaptation of the work is copyrightable to the extent that it is different from the underlying work. The material contributed by the new choreographer will be the subject of the copyright. A work based in whole or in substantial part on another work to which something original has been added or changed will be copyrightable. Obviously, the new work must be distinguishable from the ballet on which it is based and the variation must not be trivial.

I am licensed with ASCAP does that cover the choreography?

In a word, NO. First, you will find that many balletic works are not represented by the standard music licensing organizations. Second you will find that these organizations do not license dramatic works. A ballet is technically classified as a dramatic work of the performing arts. So while ASCAP may license they very work you want, they cannot license it for a dramatic work, which is how a ballet is classified.

A ballet company seeking to perform a copyrighted ballet must license both the performance right in the music from the owner; and second, it must also license the grand performance rights to the accompanying musical composition from the copyright owner. There exist small rights of non-dramatic musical works which are rights to an individual piece and grand rights works which license the entire work sometimes in a two step process, by licensing the choreography and the music, if the music must be licensed separately. A grand right is a collective work comprised of words, music, choreography, the plot, the libretto, setting, scenery, costumes, and other visual representations It is the performance of a grand opera, grand musical play, or other dramtico-musical work.” The Balanchine Trust cannot license rights it does not have but it will notify the requesting licensee of the party to contact regarding any rights it cannot license.

I want to perform a Balanchine Ballet, can I obtain the rights from ASCAP?

In a word, no, you cannot obtain dramatic rights or choreographic rights from a licensor of music. Licensor’s of music do not license dramatic works. Performance rights societies consider choreography to be a dramatic work. While music is performed as part of a ballet, its use is considered dramatic, regardless of whether the work is performed in its entirety or as one or more selections presented in a public performance. ASCAP type licenses grant performance rights in the non-dramatic use of the music, which is “a performance of a musical composition that is not woven into or does not carry forward a definite plot and its accompanying action.” In many instances performance societies do not license musical compositions accompanying concert dance.

The licensor’s of musical performances have little interest in who licenses their works. Their concern is that they receive just compensation for the use of the artist’s work. However, where dramatic performances are concerned in many instances great care is applied in determining who may license a work. The heirs of George Gershwin’s longest and most ambitious creation, Porgy and Bess, refuse to license their work to anyone who casts actors outside the black race and have refused to license a rap version of their product. It is their desire to maintain the original concept and purity of the production.

It is not uncommon in the world of ballet for a sliding scale to be used to charge for the performance of a ballet because the goal is not always to generate maximum revenue but to share to work with the world.

During his life Balanchine licensed his works for performance without fee. Prior to their copyright he simply gave permission. The issue of artistic control is of primary importance in the licensing of most ballets. The licensors are interested in seeing a composer and choreographer’s work performed with a high degree of accomplishment in a manner which does not degrade the work. The Balanchine Trust may suggest Valse Fantasy for a small company or a Youth Ballet. Their interest is to guarantee that the quality of the performance would meet with standards of Mr. Balanchine. The Trust refers to this standard as “authentic and satisfactory.”

Grand Rights - The licensing of a grand right is the licensing of a collective work comprised of words, music, choreography, the libretto, setting, scenery, costumes, and other visual representations.”
Dramatic Rights - The licensing of a dramatic right centers on the plot line. A dramatic right is “a performance of a musical composition that is woven into and carries forward a definite plot and its accompanying action.”
Small Rights - Those are the rights to only a part of a grand work.

Music that accompanies a choreographic work will be licensed as a grand right because, as a dramatico-musical work, the music is integral in that it carries forward the abstract or thematic action of the ballet. However, it is important to note that in the licensing of Grand Rights the right of license is limited to entire and complete reproductions and performances of the musical and does not extend to the individual songs themselves.”

The Balanchine Trust and Performing a Balanchine Ballet by Ballet Students

The primary object of the Balanchine Trust is to preserve the artistic integrity of Balanchine’s work while sharing it with the world of spectators and the world of dancers. The Trust believes that when Balanchine is performed badly no one is enriched, but when it is performed by the standards of the Trust the performance will be enriching to both the students and the audience.

For the licensing of Balanchine works the licensor would in most cases be the Balanchine Trust. Balanchine choreographed over 400 ballets, most of them abstract without plot and presented as abstract performancs which enveloped the dancer and the audience in the performance rather than the plot. The Balanchine Trust licenses roughly seventy of these ballets. George Balanchine co-founded both the New York City Ballet and the School of American Ballet and is considered to be the father of American Ballet.

American copyright law did NOT protect abstract ballets as choreographic works until the effective date of the the 1976 copyright act, January 1, 1978. It was in 1978, after a heart attack that Balanchine sought the advice of an estate attorney believing that his ballets could not be bequethed by will. He was informed that in fact they could be protected by copyright once registered and bequeathed. Balanchine passed away five years later, on April 30, 1983. His will acknowledges “that dance has always been created and handed down through personal contact,” but it bequeathed his ballets to his chosen heirs who created the Balanchine Trust. This Trust has its offices at the New York Ballet. The George Balanchine Foundation will receive the rights to the ballets upon the Balanchine Trust’s termination. The Balanchine Trust registered Balanchine’s name, and the terms “Balanchine Technique” and “Balanchine Style,” with the U.S. Patent and Trademark Office. A Balanchine Ballet must be licensed through the Balanchine Trust.

The Balanchine Trust’s stated purpose and mission is to promote the works of Balanchine and to retain their artistic integrity. To that end they are delighted to have the works of Balanchine performed, however, in order to maintain their artistic integrity, they have guidelines with regard to producing a Balanchine work through your company or school.

The Balanchine Trust wants no works to be performed in total or in part without their authority by any party, be they the largest ballet company in the world or the smallest dance school in Texas. They have seventy ballets available and are but a phone call away. They can be reached through the main switchboard of the New York City Ballet.

It is their policy to license a Balanchine Ballet to only those companies that are competent to perform the ballet. When a University contacts the Trust to perform a ballet for a performance or to simply teach a part of that ballet the first obligation of the Trust is to evaluate the size and quality of the program requesting the license to perform the ballet. In inadequately sized program will immediately disqualify that program from the larger ballets. However, the Trust is ready to suggest a more appropriate ballet.

Secondly, the Trust will evaluate the quality of the program making the request. Here the quality of the corps and the principles is important. If the male dancer is inadequate, the Trust will require a professional to be retained for the performance.

Third, the Trust will entrust the teaching of a Balanchine ballet only to one who had had direct association with an authorized performance. The Balanchine Trust will not permit their ballet to be taught by videotape. If you are in doubt as to whether your teacher is authorized, the Balanchine Trust is but a phone call away.

The Trust does make a distinction between University Companies and Youth Ballets while noting that some Youth Ballets are of a professional calibre and its members are no younger than some of the dancers at the New York Ballet.

How to You Get Permission to Teach a Balanchine Ballet
In order to perform a Balanchine Ballet the following steps should be taken:

1.  Contact he Balanchine Ballet which offices at the New York City Ballet, advising them of the piece you would like to perform. Include the number of dancers in your company.
2.   Include a videotape of your company so that the Trust can evaluate their proficiency.
3.   If you are performing Balanchine’s Nutcracker be prepared to retain the services of an approved teacher for roughly one month.

While the Balanchine Trust is committed to sharing the works of Balanchine and encouraging dance, they are also mandated to receive a fair price for his works. Generally, their fees are reasonable for Youth Ballet and University Ballets and can be at a minimum, zero, if your community ballet is generating large incomes from the Balanchine Ballet, be prepared to pay a licensing fee.
In the long run observing the standards and requirement of the Balanchine Ballet will raise the standards of dance and are intended to and generally speaking do not inhibit the growth and love of ballet.

Licensing Associations

In order to comply with the U.S. copyright law, the use of music and the performance of choreography generally requires permission, the use of film clips can require permission and establishments defined by statute that play copyrighted music are required to secure permission to use copyrighted music. A potential user of copyright information can secure licenses or permission from organizations for the legal use of copyrighted material. Obtaining a license or permission from the licensing organization ensures the user of complying with the copyright law. Only the Balanchine Trust can authorize performances of Balanchine’s works.

Authors of dramatic works typically negotiate with the theaters and producers themselves and only entrust a collective management organization for the collection of remuneration. The use of such works takes place in a relatively small range of locations; thus, direct licensing by authors is feasible both practically and economically.

CyberLaw – Information on Copyright – Berkman Center for Internet Law

Creative Commons – Share Creative Work

American Society of Composers, Artists, and Publishers (ASCAP) collects royalties for copyright holders and can provide a license to use their music.
The Motion Picture Licensing Corporation (MPLC) collects provides licenses on an annual basis for home use videotapes or videodisks of public performances.
Movie Licensing USA is a licensing agent for authorized studios such as Walt Disney Pictures, Touchstone Pictures, Hollywood Pictures, Warner Bros., Columbia Pictures, TriStar Pictures, Paramount Pictures, DreamWorks Pictures, Metro-Goldwyn-Mayer, Universal Pictures, Sony Pictures and United Artists, provides Movie Public Performance Site Licensing to schools for the use of entertainment videos. The Movie License licenses the showing of copyrighted movies produced by the studios represented, and used by schools for numerous extra-curricular activities.
The National Writer’s Union is the union for freelance writers working in U.S. markets and can license their work.
The WATCH File (Writers, Artists, and Their Copyright Holders) is a database containing primarily the names and addresses of copyright holders or contact persons for authors and artists whose archives are housed, in whole or in part, in libraries and archives in North America and the United Kingdom. The objective in making the database available is to provide information to scholars about whom to contact for permission to publish text and images that still enjoy copyright protection. WATCH is a joint project of the Harry Ransom Humanities Research Center at The University of Texas at Austin and the University of Reading Library, Reading, England.
The Copyright Clearance Center is a non-profit organization which licenses works for both publishers and authors.
ASCAP is a membership association of over 140,000 U.S. composers, songwriters and publishers of music. ASCAP has a Board of Directors elected by and from the membership. It licenses and distributes royalties for the non-dramatic public performances of their copyrighted works.
BMI is an American performing rights organization that represents approximately 300,000 songwriters, composers and music publishers. This is a non-profit company, founded in 1940, which collects license fees on behalf of those American creators it represents.
The Recording Industry Association of America is a trade group that represents the U.S. recording industry. Its members are recording companies. It licenses the use of its members music. This is the group that is so active in suing downloaders.
The Association of American Publishers (AAP) has 310 members located throughout the United States and is the principal trade association of the book publishing industry. They represent publishers of hardcover and paperback books and publishers of audio and video tapes, computer software, looseleaf services, electronic products and services including online databases, CD-ROM and arange of educational materials including classroom periodicals, maps, globes, filmstrips, and testing materials.
Cartoonbank.com is the online home of The Cartoon Bank, a New Yorker Magazine company. It provides a searchable database of cartoon humor. It contains 85,000 records in its central archive-including all the cartoons ever published in The New Yorker.
Copyright Clearance Center provides the ability to obtain authority to use (for a fee) copyrighted content such as articles from journals, book chapters, entire journals, for coursepacks or library reserves for either educational or commercial works for parties represented by CCC.
The Harry Fox Agency (HFA) established 1927 by the National Music Publisher’s Association licenses the uses of music in the United States on CDs, digital services, records, tapes and imported phonorecords.
The Motion Picture Association and the Motion Picture Association of America (MPA and MPAA) were formed in 1945 and licenses the use of films.Public Domain Music –
Public Domain Music — Find explanations of public domain music and lyrics, a song list of over 3500 titles, royalty free music recordings, what you need for proof of public domain, reference books to help with public domain music research, FAQ’s, and links to other resources about public domain music, lyrics, and sheet music at this web site created by the Public Domain Information Project and Haven Sound, Inc.
Art Images for College Teaching –
Artists Rights Society (ARS) — This copyright, licensing and monitoring represents the intellectual property interests of over 30,000 visual artists and estates of visual artists (painters, sculptors, photographers, architects, etc.)

These associations are available on the Web and offer access to most publications and authors.

Copyrighting Stage Direction -
Copyrighting Stage Directions
& the Constitutional Mandate to “Promote the Progress of Science” Jessica Talati.  Nw. J. Tech. & Intell. Prop. 241,NJTIP Home, Volume 7 Issue 2  (Spring 2009)
Northwestern Journal of Technology and Intellectual Property

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FOR LEGAL ADVICE. ALWAYS CONSULT AN ATTORNEY.

opyright (c) 2005 New York University Law Review
New York University Law Review
December, 2005
80 N.Y.U.L. Rev. 1829
LENGTH: 16434 words

NOTE: A PAS DE DEUX FOR CHOREOGRAPHY AND COPYRIGHT

NAME: Joi Michelle Lakes*

BIO: * Copyright © 2005 by Joi Michelle Lakes. B.A., 2001, Southwestern University; J.D., 2005, New York University School of Law. I would like to express my gratitude to Professor Diane Zimmerman for her guidance and support. Marty Thompson and Erin Hicks also deserve my thanks for their helpful suggestions on earlier drafts of this Note. Additionally, I would like to thank my editors and friends on the New York University Law Review – Mitchell Oates, Delci Winders, Hunter Tart and especially Taja-Nia Henderson and Joanna Cohn Weiss – for their comments, edits, and near-superhuman patience and good humor. This Note is dedicated to the cherished memory of my aunt, Ann Bostick Reed, who I am sure would have found reading about dance as enjoyable as watching it.

SUMMARY:
… In this Note, Joi Lakes argues that the 1976 Copyright Act and the rules set forth by the Copyright Office are flawed with respect to defining what constitutes expressive, copyrightable material in a choreographic work. … Finally, copyright law’s fixation requirement as currently understood could lead to underprotection for choreography, which is particularly difficult to “fix” in a tangible medium. … Part I of this Note explores whether copyright law is truly necessary for an artistic community such as that of dance. … Identifying the choreographer’s use of movement and flow as the expressive quality of a choreographic work, this Part shows how the current Act allows courts to grant copyright protection to non-expressive elements of choreographic works and thereby keep those elements outside the public domain. … However, the Copyright Office does not specify what a choreographer’s means of expression are, as it does for other subject matter of copyright, and thus it is unclear when a work moves from public domain steps to copyrightable expressive choreography. … The Copyright Office’s Compendium II specifically addresses forms of fixation which are appropriate and inappropriate to obtain copyright protection for a choreographic work. … In keeping with these goals, I propose the following definition of choreographic works: “A choreographic work is a choreographer’s expression represented by the planned flow of one or more dancer’s movement in time through body positions and spatial arrangements. …

HIGHLIGHT: In this Note, Joi Lakes argues that the 1976 Copyright Act and the rules set forth by the Copyright Office are flawed with respect to defining what constitutes expressive, copyrightable material in a choreographic work. This ambiguity creates an imbalance between the public and private domains, which acts to stifle choreographic innovation instead of encouraging it. In particular, the movements comprising choreographic building blocks that properly belong in the public domain are not defined expansively enough. Current copyright doctrine also fails to emphasize the role of flow – or movement through time – in describing choreography’s expressive element, which is the sine qua non of copyright protection. Erroneous understandings of choreograp