Copyright Law Issues – Protection of creative yoga and dance move compilations! Need a California Copyright and Entertainment Lawyer, call us at (877) 276-5084.
Introduction
This blog discusses whether or not you can seek federal copyright protection by registering your unique dances moves, signature yoga poses, or other creative choreography. In general a yoga stance might not be easy to protect, nor would a simple dance move, however, there might be circumstances when a creative arrangement and compilation might create a right to obtain a copyright.
CLICK HERE FOR A LIST OF THINGS YOU CAN AND CANNOT COPYRIGHT.
Key case – Birkam's Yoga College of India v. Evolation Yoga, LLC
The case of Birkam v. Evolation involved a California company facing off against a New York LLC in the 9th Circuit Court of Appeals.
General background:
In 1971, Bikram Choudhury, the “self-proclaimed ‘Yogi to the stars,” at 56, arrived in Beverly Hills, California. He soon became a central figure in the growing popularity of yoga in the United States. Born and raised in Calcutta, India, Choudhury began studying yoga at age four and learned hundreds of traditional Hatha yoga “asanas,” or individual poses. Hatha yoga places particular emphasis on the physical components of yoga. Choudhury developed a sequence of twenty-six asanas and two breathing exercises, arranged in a particular order, which he calls the “Sequence.” See Bikram Choudhury, Bikram's Beginning Yoga Class (1979). Choudhury opened his own studio, where he began offering “Bikram Yoga” classes. In a Bikram Yoga class, the Sequence is practiced over the course of ninety minutes, to a series of instructions (the “Dialogue”), in a room heated to 105 degrees Fahrenheit to simulate Choudhury's native Indian climate. Choudhury popularized the Sequence by marketing the many health and fitness benefits it provides. Choudhury informs prospective students that his “system of Hatha Yoga is capable of helping you avoid, correct, cure, heal, or at least alleviate the symptoms of almost any illness or injury.” He claims that he developed the Sequence after “many of years of research and verification using modern medical measurement techniques.” He tells reporters that he extended the careers of professional athletes, including Kareem Abdul–Jabbar and John McEnroe. This message has resonated with an American audience: as the complaint in this action explains, “[p]ublic demand for Bikram Yoga classes grew steadily once Bikram Yoga participants realized that Bikram's unique yoga style and method offered them tremendous physical, mental and other benefits.” In 1979, Choudhury published the book Bikram's Beginning Yoga Class, which includes descriptions, photographs, and drawings of the Sequence's twenty-six poses and two breathing exercises. Choudhury registered the book with the U.S. Copyright Office in 1979. In 2002, he also registered the “compilation of exercises” contained in the book, using a supplementary registration form that referenced back to the 1979 book. In 1994, Choudhury introduced the “Bikram Yoga Teacher Training Course.” In 2002 and 2005, respectively, Mark Drost and Zefea Samson enrolled in and successfully completed the three-month Bikram Yoga Teacher Training course.
In 2009, Drost and Samson founded Evolation Yoga, LLC. Evolation Yoga offers several types and styles of yoga, including “hot yoga,” which is similar to “Bikram's Basic Yoga System.” Evolation acknowledges that hot yoga “includes 26 postures and two breathing exercises and is done for 90 minutes, accompanied by a series of oral instructions, in a room heated to approximately 105 degrees Fahrenheit.”
On July 1, 2011, Choudhury and Bikram's Yoga College of India, L.P. (“Choudhury”) filed a complaint in the Central District of California alleging, inter alia, that defendants Evolation Yoga, LLC, Mark Drost, and Zefea Samson (“ Evolation”) infringed “Bikram's Copyrighted Works through substantial use of Bikram's Copyrighted Works in and as part of Defendants' offering of yoga classes.” On November 12, 2012, Evolation moved for partial summary judgment as to Choudhury's claim of copyright infringement of the “Sequence.” The district court granted Evolation's motion, ruling that the “Sequence is a collection of facts and ideas” that is not entitled to copyright protection. The parties settled all remaining claims against each other, and Choudhury timely appealed as to the “Sequence.” See Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1035–36 (9th Cir. 2015).
Legal issue: Whether or not the yoga sequence was protected by copyright laws, such that Plaintiff could maintain a claim of federal copyright infringement which would allow Plaintiff to seek damages and penalties for copyright infringement.
Courts holding:
Though Choudhury emphasizes the aesthetic attributes of the Sequence's “graceful flow,” at bottom, the Sequence is an idea, process, or system designed to improve health. Copyright protects only the expression of this idea—the words and pictures used to describe the Sequence—and not the idea of the Sequence itself. Because the Sequence is an unprotectable idea, it is also ineligible for copyright protection as a “compilation” or “choreographic work.” The district court properly granted partial summary judgment in favor of Evolation because the Sequence is not a proper subject of copyright.
Rationale: The court gave three main reasons for its holding: A. The Sequence Is an Unprotectable Idea. “Section 102(a) of the Copyright Act of 1976 sets forth the proper subjects of copyright protection. 17 U.S.C. § 102(a). “Section 102(b) expressly excludes protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Id. § 102(b). Section 102(b) codifies the “idea/expression dichotomy,” under which “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.” B. The Sequence Is Not a Copyrightable Compilation. “Choudhury contends that the Sequence is entitled to copyright protection as a “compilation.” Specifically, Choudhury claims that the Sequence qualifies for copyright protection because his “selection, coordination, and arrangement” of twenty-six poses and two breathing exercises create a coherent and expressive composition. The district court correctly rejected this argument. The Copyright Act identifies compilations as a proper subject of copyright. Section 103 of the Copyright Act provides that “the subject matter of copyright as specified in section 102 includes compilations.” 17 U.S.C. § 103(a). A “compilation” is “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Id. § 101. It is essential to recognize, however, that Section 103 complements Section 102. Thus, while a compilation may be eligible for copyright protection, it must nevertheless satisfy the requirements of Section 102. A compilation must, in other words, represent an “original work of authorship,” and “in no case” may copyright protection “extend to any idea, procedure, process, or system.” Id. § 102. The availability of copyright protection for compilations, therefore, does not eliminate Section 102's categorical bar on copyright protection for ideas.” C. The Sequence Is Not a Copyrightable Choreographic Work. “The district court properly rejected Choudhury's argument that the Sequence is entitled to copyright protection as a choreographic work. The 1976 Copyright Act extended protection to “ pantomimes and choreographic works,” which were previously not copyrightable. Pub.L. No. 94–553, 90 Stat. 2541, 2545 (codified at 17 U.S.C. § 102(a)(4)). In 1986, the Second Circuit observed that “[e]xplicit federal copyright protection for choreography is a fairly recent development, and the scope of that protection is an uncharted area of the law.” Horgan v. Macmillan, Inc., 789 F.2d 157, 160 (2d Cir.1986). This remains true today. The parties debate the meaning of the term “choreography,” which we have not yet defined in the copyright context. Nor did Congress define the term “choreographic work,” apparently because its meaning was “fairly settled.” H.R.Rep. No. 94–1476, at 53 (1976). The legislative history does explain, however, that it is not “necessary to specify that ‘choreographic works' do not include social dance steps and simple routines.” Id. at 53–54. The Second Circuit has relied on the Compendium of Copyright Office Practices as persuasive authority and concluded that “choreography represents a related series of dance movements and patterns organized into a coherent whole.” Horgan, 789 F.2d at 161 (quoting U.S. Copyright Office, Compendium II: Compendium of Copyright Office Practices § 450.03(a) (1984)).” The Compendium II defines “dance” as “static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.” Compendium II, § 450.01. The “dance movements,” according to the Compendium II, “must be more than mere exercises, such as ‘jumping jacks' or walking steps.” Id. § 450.03(a). Finally, the Compendium II explains that choreography is “usually intended to be accompanied by music” but “need not tell a story” and need not be presented “before an audience.” Id. §§ 450.01–450.02.
Take away:
This case should give you some general guidance on what would be required to seek copyright protection for yoga positions and choreographed dance moves and compilations. There is additional guidance below.
U.S. Copyright Office statement of policy regarding compilations
In one copyright “statement of policy” from the United States Copyright Office (2012), they discussed ways in which there MIGHT be a way to protect dance or yoga moves that constitute “compilation authorship. In this statement of policy they noted:
“SUPPLEMENTARY INFORMATION: The Copyright Office is issuing a statement of policy to clarify its examination practices with respect to claims in “compilation authorship,” or the selection, coordination, or arrangement of material that is otherwise separately uncopyrightable. The Office has long accepted claims of registration based on the selection, coordination, or arrangement of uncopyrightable elements, because the Copyright Act specifically states that copyrightable authorship includes compilations. 17 U.S.C. 103.”
The statement goes on to describe what a compilation is:
A`compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. 17 U.S.C. 101 (“compilation”). This definition's inclusion of the terms`preexisting material” or “data” suggest that individually uncopyrightable elements may be compiled into a copyrightable whole. The legislative history of the 1976 Act supports this interpretation, stating that a compilation`results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright.” H.R. Rep. 94-1476, at 57 (emphasis added).
The policy memorandum then discussed that there must still be unique work of authorship in the whole:
“Viewed in a vacuum, it might appear that any organization of preexisting material may be copyrightable. However, the Copyright Act, the legislative history and the Supreme Court's decision in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (U.S. 1991), lead to a different conclusion. In Feist, interpreting the congressional language in the section 101 definition of`compilation,” the Supreme Court found protectable compilations to be limited to`a work formed by the collection and assembling of preexisting material or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Feist at 356, quoting 17 U.S.C. 101 (“compilation”) (emphasis by the Court). The Court stated: The purpose of the statutory definition is to emphasize that collections of facts are not copyrightable per se. It conveys this message through its tripartite structure, as emphasized above by the italics. The statute identifies three distinct elements and requires each to be met for a work to qualify as a copyrightable compilation:
(1) The collection and assembly of pre-existing material, facts, or data;
(2) the selection, coordination, or arrangement of those materials;
and
(3) the creation, by virtue of the particular selection, coordination, or arrangement, of an`original” work of authorship. Not every selection, coordination, or arrangement will pass muster. This is plain from the statute. We conclude that the statute envisions that there will be some fact-based works in which the selection, coordination, and arrangement are not sufficiently original to trigger copyright protection.
Do you need a copyright registration certificate before filing a federal copyright infringement lawsuit?
PODCAST: Listen to Attorney Steve® explain this legal concept.
Copyright office definition of Pantomimes and Choreographic works
Here is a fact sheet from the U.S. Copyright office on copyrighting pantomime and choreographic works. The definition on their website states:
“Choreography and pantomimes are also copyrightable dramatic 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.”
17 U.S.C. 103 “Compilations”
Section 17 U,S.C. 103 of the U.S. Copyright laws discusses limitations on the the right to claim copyright protection in a yoga or dance compilation:
“(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”
So the extent you might be able to claim copyright protection, you would not have any rights in any pre-existing works incorporated into your dance moves or yoga poses.
More snippets from the Copyright Office
Here are a few more legal snippets to be aware of:
The Copyright Act recognizes choreography as a distinct category of copyrightable
authorship. 17 U.S.C. § 102(a)(4). The statute does not define the term “choreographic
works.” However, the legislative history states that this term has a “fairly settled
meaning.” The word “choreography” is derived from the Greek words “choreia,” meaning “dance,”
and “graphikos,” meaning “to write.”
A dance is the “static and kinetic succession of
bodily movement in certain rhythmic and spatial relationships.” Horgan v. Macmillan,
Inc., 789 F.2d 157, 161 (2d Cir. 1986) (quoting COMPENDIUM (SECOND) § 450.01). The
Office defines choreography as the composition and arrangement of “a related series of
dance movements and patterns organized into a coherent whole.” Id. (quoting
COMPENDIUM (SECOND) § 450.03(a)).
By definition, choreography is a subset of dance. As such, a work of authorship cannot
be registered as a choreographic work unless it is comprised of dance steps, dance
movements, and/or dance patterns.
However, the term choreography is not synonymous with dance.805.2 Elements of Choreographic Works
Choreographic works typically contain one or more of the elements described below,
although the presence or absence of a given element is not determinative of whether a
particular dance constitutes choreography.
805.2(A) Rhythmic Movement in a Defined Space
Choreography is executed through the physical movement of a dancer's body.
Specifically, a choreographic work directs the rhythmic movements of one or more
dancers' bodies in a defined sequence and a defined spatial environment, such as a
stage.
805.2(B) Compositional Arrangement
A choreographic work “represents a related series of dance movements and patterns”
organized into an integrated, coherent, and expressive compositional whole. Horgan,
789 F.2d at 161 non-expressive physical movements, such as
ordinary motor activities, functional physical activities, competitive maneuvers, and the
like are not registrable as choreographic works. Likewise, de minimis dance steps and
movements are not protectable, because they do not contain a sufficient amount of
choreographic authorship. See Section 805.5(A).
805.2(C) Musical or Textual Accompaniment
Choreography is usually accompanied by a specific musical composition, although in
some cases it may be accompanied by the recitation of a literary work, such as a poem,
or it may be performed in silence. See Horgan, 789 F.2d at 161
The accompaniment for a choreographic work typically provides an established rhythm
or theme for the work. In some cases, choreographic works may be intended to
express—through bodily movement—the themes or emotions conveyed by a specific musicalcomposition or literary work. (“Choreography is commonly devised to be performed with music; the dance
may be intended to express a theme suggested by the music, or the music may be
intended to heighten the dramatic effect of the dance.”).
805.2(D) Dramatic Content
A choreographic work may present a story or theme or it may be an abstract
composition. (“We see no reason
why an ‘abstract' dance, as an original creation of a choreographer's authorship, should
not be protected as fully as a traditional ballet presenting a story or theme.”).
Choreographic works often tell a story, develop characters or themes, and convey
dramatic concepts or ideas through a sequence of bodily movements presented in an
integrated, compositional whole. “Choreographic works of this character are typified by
ballets.”
A choreographic work may convey dramatic action through specific dance movements
and physical actions, even though it does not tell a story or follow a narrative structure.
“[M]any ‘modern' dances, as distinguished from traditional ballets, are no doubt creative
works of authorship; and although no ‘story' may be readily evident in a dance of the
‘modern' variety, the dance movements are expected to convey some thematic or
emotional concept to an audience.”
By contrast, choreographic works published prior to January 1, 1978 cannot be
registered unless the work tells a story, develops a character, or expresses a theme or
emotion by means of specific dance movements and physical actions. Choreography was
not mentioned in the 1909 Act, and as a result, dances movements could be registered
only if the work qualified as a “dramatic work.”
805.2(E) Presentation Before an Audience
Choreographic works are typically performed before an audience. By contrast, social
dances are not intended to be performed for an audience; they are typically performed
for the personal enjoyment of the dancers themselves. As discussed in Section 805.5(B),
this is one of the distinctions between choreography (which is eligible for copyright
protection) and social dances (which do not constitute copyrightable subject matter).
805.2(F) Execution by Skilled Performers
Choreographic works are typically performed by skilled dancers. this is one of the distinctions
between choreography (which is eligible for copyright protection) and social dances
(which do not constitute copyrightable subject matter). As a general rule, social dances
are not created for professional dancers; they are intended to be performed by the
general public. While ballroom dances, line dances, and similar movements generally
can be performed by members of the public, choreographic works typically cannot.
805.3 Fixation of Choreographic Works
805.3(A) The Work Must Be Fixed in a Tangible Medium of Expression
The U.S. Copyright Office may register a claim to copyright in a choreographic work,
provided that the specific movements constituting the work have been fixed in a
tangible medium of expression. 17 U.S.C. § 102(a). As a general rule, the work should be
fixed in a visually perceptible form, because choreography involves the physical
movements of a dancer's body which are visually perceived.
805.3(B) Capacity for Uniform Performance
A choreographic work should be fixed in a form that reveals “the movements of the
dance in sufficient detail to permit the work to be performed therefrom.”
In other words, the specific movements and physical actions
that constitute the choreographic work should be fixed in a form that allows the work to
be performed in a consistent and uniform manner.
805.3(C) Improvisation
The U.S. Copyright Office may register a choreographic work if the work has been fixed
in a visually perceptible form that allows the dance movements to be perceived and
performed by dancers, even if the choreographer left some room for improvisation or if
some improvisation is intended in the performance of the work. It is not possible to
copyright an improvised dance if the improvisation has not been fixed in a tangible
medium of expression. See 17 U.S.C. § 102(a). For example, the Office may refuse to
register a work that simply directs the performer to improvise a dance based on a
particular theme or otherwise does not illustrate, depict, or describe the dancers'
specific movements. (“It is doubtful, atbest, whether the Federal statute could extend copyright protection to a work presented
only in a performance and not recorded in some tangible form of ‘writing.'”).
805.3(D) Forms of Fixation for Choreographic Works
805.3(D)(1) Dance Notation
Dance notation may be used to represent the precise movement of the dancers in a
choreographic work. Examples of dance notation systems include Labanotation (which
employs abstract symbols), Benesh Dance Notation (which employs stick figures),
among other systems. See generally Ann Hutchinson Guest.
While dance notation may be used to fix a choreographic work, the notational system
itself is a system that is not eligible for copyright protection under Section 102(b) of the
Copyright Act.
805.3(D)(2) Audiovisual Recordings
A choreographic work may be embodied in a motion picture or other audiovisual
recording, such as a music video.
805.3(D)(3) Textual Descriptions, Photographs, Drawings, Illustrations, or the Like
A choreographic work may be fixed with a textual description, photographs, drawings,
or any combination of the foregoing, provided that the description is specific enough to
identify the precise movements of the dancers and provided that the description is
sufficiently detailed to serve as directions for its performance. See Horgan, 789 F.2d at
163 (noting that photographs “may communicate a great deal” about a choreographic
work, such as “a gesture, the composition of dancers' bodies” as well as “the moments
before and after the split second recorded.”).
805.4 Copyrightable Authorship in Choreographic Works
The U.S. Copyright Office may register a claim to copyright in a choreographic work,
provided that (i) the work is a dance; (ii) the dance constitutes copyrightable subject
matter under Section 102(a)(4) of the Copyright Act; (iii) the dance contains a sufficient
amount of choreographic authorship; and (iv) the dance was created by a human author
for human performers. These requirements are discussed in Sections 805.4(A) through
805.4(C).
805.4(A) Copyrightable Subject Matter
As the Second Circuit observed in Horgan, “[d]ance is static and kinetic successions of
bodily movement in certain rhythmic and spatial relationships,” while choreography is
the composition and arrangement of “a related series of dance movements and patterns
organized into a coherent whole.” 789 F.2d at 161 (quoting COMPENDIUM (SECOND) §§
450.01, 450.03(a)).
When evaluating a claim to copyright in choreography, the registration specialist will
use objective criteria to determine whether the work is a dance that constitutes
copyrightable subject matter under Section 102(a)(4) of the Copyright Act. In making
this determination, the specialist will focus on the intrinsic nature of the work, rather
than the specific performance that is reflected in the deposit copy(ies). The primary
criteria that the specialist will consider are set forth in Section 805.2. These elements
are found in most choreographic works, although the presence or absence of a
particular element may not be determinative.
When Congress extended copyright protection to choreographic works, it did not intend
to protect all forms of dance or movement. Instead, it used the term “choreographic
work” in contrast to non-compositional dances, such as social dances or simple dance
routines. Examples of dances and bodily movements that do not constitute
copyrightable subject matter are discussed in Section 805.5(B) below.
805.4(B) Choreographic Authorship
“As a fundamental premise, copyright presupposes an original intellectual creation of
authorship.” In the case of a choreographic work,
original authorship requires the composition and arrangement of “a related series of
dance movements and patterns” organized into an integrated, coherent, and expressive
whole. Horgan, 789 F.2d at 161
The U.S. Copyright Office may register a choreographic work, provided that the dance
contains a sufficient amount of choreographic authorship that was created by the
choreographer. The registration specialist will use objective criteria to determine
whether a choreographic work satisfies these requirements by reviewing the
information provided in the application and by examining the deposit copy(ies),
including the individual elements of the work as well as the dance as a whole. The
specific criteria that the specialist will consider are set forth in Section 805.2 above. The
specialist will not consider subjective criteria that have no bearing on whether the
originality requirement has been met, such as the author's intent, the aesthetic value,
artistic merit, or intrinsic quality of the dance, or the symbolic meaning or commercial
impression of the dance.
Examples of dances and bodily movements that do not satisfy the originality
requirement are discussed in Section 805.5(A) below.
805.4(C) Human Performance Required
The Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a). To qualify
as a work of authorship a choreographic work must be created by a human being and it
must be intended for execution by humans. Dances performed or intended to be
performed by animals, machines, or other animate or inanimate objects are not
copyrightable and cannot be registered with the U.S. Copyright Office.
805.4(D) Choreographic Works That Incorporate De Minimis Dance Steps, Social
Dances, Simple Routines, or Other Uncopyrightable Movements
As discussed in Section 805.5(B), social dances, simple routines, and other
uncopyrightable movements cannot be registered as separate and distinct works of
authorship, even if they contain a substantial amount of creative expression.
Nevertheless, uncopyrightable movements may be used as the building blocks for a
choreographer's expression, in much the same way that words and short phrases
provide the basic material for writers. Choreographic works that incorporate social
dance steps, simple routines, or even athletic exercises may be protected by copyright,
provided that the work as a whole contains a sufficient amount of choreographic
authorship. See Horgan, 789 F.2d at 161
• José Eduardo da Silva created the choreography for a complex dance
production titled, Tango de Janeiro. One of the dances in the
production incorporates an extensive number of steps and routines
from a social dance. While the overall production could be
registered as a choreographic work, the U.S. Copyright Office would
reject a claim limited to the adapted social dance.
805.5 Uncopyrightable Dances and Dance Steps
The U.S. Copyright Office is charged with administering the provisions of the Copyright
Act and with issuing regulations for the administration of the copyright system that are
consistent with the statute. 17 U.S.C. §§ 701(a), 17 U.S.C. §§ 701, 702. The Office has no
authority to register claims to copyright in material that falls outside the scope of
federal statutory protection. Some of the more common types of uncopyrightable dances
are discussed in Sections 805.5(A) and 805.5(B). These examples are overlapping in the
sense that a dance step or routine falling within one category may also fall within other
categories described in that Section.
805.5(A) De minimis Movements and Dance Steps
As discussed in Section 805.1, choreography is the composition and arrangement of “a
related series of dance movements and patterns organized into a coherent whole.”
Horgan, 789 F.2d at 161 (quoting COMPENDIUM (SECOND) § 450.03(a)). Individual
movements or dance steps by themselves are not copyrightable, such as the basic waltz
step, the hustle step, the grapevine, or the second position in classical ballet. Id. (quoting
COMPENDIUM (SECOND) § 450.06). Likewise, the U.S. Copyright Office cannot register short
dance routines consisting of only a few movements or steps with minor linear or spatial
variations, even if the routine is novel or distinctive. Cf. 37 C.F.R. § 202.1(a). The
individual elements of a dance are not copyrightable for the same reason that individual
words, numbers, notes, colors, or shapes are not protected by the copyright law.
Individual dance steps and short dance routines are the building blocks of
choreographic expression, and allowing copyright protection for these elements would
impede rather than foster creative expression. See Horgan, 789 F.2d at 161
Examples:
• Aruna Desai choreographed a music video for a song titled “Made in
the USA.” The dance is a complex and intricate work performed by a
troupe of professional dancers. During the chorus, the dancers form
the letters “U, S, A” with their arms. Although the dance as a whole
could be registered as a choreographic work, the Office would reject
a claim limited to the “U, S, A” gesture.
• Butler Beauchamp is a wide receiver for a college football team.
Whenever he scores a touchdown, Butler performs a celebratory
dance in the endzone. The dance merely consists of a few
movements of the legs, shoulders, and arms. The Office would
refuse to register this dance as a choreographic work.
805.5(B) Social Dances, Simple Routines, and Other Uncopyrightable Movements
Congress expressly recognized choreography as one of the categories of copyrightable
subject matter under Section 102(a)(4) of the Copyright Act. The legislative history
indicates that “the technical term ‘choreographic works,' as used in the context of
copyright, may refer both to the dance itself as the conception of its author to be
performed for an audience, and to the graphic representation of the dance in the form of
symbols or other writing from which it may be comprehended and performed.”
Although Congress did not define this “technical
term” in the statute, it does not have the same meaning as “choreography,” which is
often used as a noun or verb for any type of dance or artistic display, as in “The square
dance caller provides the choreography that the dancers follow” or “The company
staged a well-choreographed production of Richard III.”
When Congress extended federal copyright protection to choreography, it intended to
protect expressive works of authorship, such as ballet or modern dance. However,
Congress did not intend to protect all forms of dance or movement. The legislative
history specifically states that “choreographic works do not include social dance steps
and simple routines.” H.R. REP. NO. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N.
at 5667; S. REP. NO. 94-473, at 52 (1975).
Thus, the U.S. Copyright Office cannot register a claim to copyright in social dances or
simple routines, because they do not constitute copyrightable subject matter. Likewise,
the Office cannot register a claim to copyright in ordinary motor activities, functional
physical movements, competitive maneuvers, feats of physical skill or dexterity, or the
like, because such movements lack the necessary creative expression to constitute a
work of original authorship. Congress gave federal courts the flexibility to interpret the
scope of the existing subject matter categories, but only Congress has the authority to
create entirely new categories of authorship. “If the federal courts do not have the
authority to establish new categories of subject matter, it necessarily follows that the
Office also has no such authority in the absence of any clear delegation of authority to
the Register of Copyrights.” Registration of Claims to Copyright, 77 Fed. Reg. at 37,607.
The fact that a dance or movement may contain more than a trivial amount of original
authorship is irrelevant to this determination. Social dances, simple routines, and other
uncopyrightable movements are not “choreographic works” under Section 102(a)(4) of
the Copyright Act. As such, they cannot be registered, even if they contain a substantial
amount of original, creative expression. For the same reason, the Office cannot register
derivative social dances, derivative simple routines, or the like. A dance that is merely an
adaptation of a social dance or simple routine is also considered a social dance or simple
routine that does not qualify as a choreographic work under Section 102(a)(4) of the
Act.
The dividing line between copyrightable choreography and uncopyrightable dance is a
continuum, rather than a bright line. At one extreme are ballets, modern dances, and
other complex works that represent a related series of dance movements and patterns
organized into a coherent compositional whole. At the other extreme are social dances,
simple routines, and other uncopyrightable movements described in Sections
805.5(B)(1) through 805.5(B)(3) below. Many works fall somewhere in between.
C O M P E N D I U M O F U . S . C O P Y R I G H T O F F I C E P R A C T I C E S , Third Edition
Chapter 800: 73 01/28/2021
The registration specialist will use objective criteria to determine whether a particular
work falls on one side of the continuum or the other. The primary criteria that the
specialist will consider are set forth in Section 805.2. The presence or absence of a
particular element is not determinative. Instead, the specialist will consider the intrinsic
nature of the work, including its individual elements as well as the work as a whole, to
determine whether it is the type of dance that constitutes copyrightable subject matter
under Section 102(a)(4) of the Copyright Act.
805.5(B)(1) Simple Routines
Congress made it clear that there is a distinction between “choreographic works” on the
one hand and simple routines on the other. See H.R. REP. NO. 94-1476, at 54 (1976),
reprinted in 1976 U.S.C.C.A.N. at 5667 (“‘choreographic works' do not include social
dance steps and simple routines”); S. REP. NO. 94-473, at 52 (1975). Choreographic
works are eligible for copyright protection, but simple routines are not.
The dividing line between copyrightable choreography and a simple routine is a
continuum, rather than a bright line. The U.S. Copyright Office may register complex
dances consisting of a related series of dance steps, movements, and patterns organized
into a coherent compositional whole. By contrast, the Office cannot register simple
routines. For example, it is not possible to copyright a series of dance movements that
constitute a relatively small part of a theatrical performance, such as a discrete routine
within a variety show, dance contest, or other exhibition. See COPYRIGHT OFFICE STUDY NO.
28, at 100.
805.5(B)(2) Social Dances
Congress made it clear that there is a distinction between “choreographic works” on the
one hand and social dances on the other. See H.R. REP. NO. 94-1476, at 54 (1976),
reprinted in 1976 U.S.C.C.A.N. at 5667 (“‘choreographic works' do not include social
dance steps and simple routines”); S. REP. NO. 94-473, at 52 (1975). Choreographic
works are eligible for copyright protection, but social dances are not. Examples of social
dance include the following:
• Ballroom dances.
• Folk dances.
• Line dances.
• Square dances.
• Swing dances.
• Break dances.
Choreographic works are compositions that are intended to be performed by skilled
dancers, typically for the enjoyment of an audience. By contrast, social dances are
intended to be performed by members of the general public for their own personal
enjoyment. In other words, “social dances are intended to be executed by the public, not
to be performed for the public as audience.” COPYRIGHT OFFICE STUDY NO. 28, at 100.
Performing a social dance is often a participatory, social experience, while the
performance of a choreographic work is an expressive act that is typically intended to
be performed for the enjoyment of others. Whereas social dances are generally capable
of being performed by members of the public, choreographic works typically cannot. See
id. at 93, 100.
If a social dance could be considered a choreographic work under Section 102(a)(4) of
the Copyright Act, every individual who performed that dance in public would infringe
the rights of the copyright owner. Unlike singing a song in the shower or whistling a
tune in a car (which would be considered a private performance), social dances are
usually performed in public by members of the general public. In other words, these
types of dances are typically performed at places that are open to the public or at social
functions where a substantial number of people outside the normal circle of a family and
its social acquaintances are gathered. 17 U.S.C. § 101 (definition of “perform or display a
work ‘publicly'”).
Given the express language in the House and Senate Reports concerning the meaning of
the term “choreographic works” and given the absence of any limitation on the public
performance right with respect to dance, the Office has concluded that social dances do
not constitute copyrightable subject matter under Section 102(a)(4) of the Copyright Act.
Example:
• Seymour Winkler created a line dance for a song titled “The Slip,”
which was featured in a famous music video. The dance consists of a
few steps, a turn, a hop, and a snap, which is then repeated in
different directions. “The Slip” is often performed at weddings and
other social occasions, and members of the general public often
perform Seymour's line dance when the song is played. The U.S.
Copyright Office would refuse to register this line dance, because it
is a social dance that is commonly performed by members of the
public as a participatory social activity (rather than a theatrical
performance for the enjoyment of an audience).
805.5(B)(3) Ordinary Motor Activities, Non-Expressive Physical Activities, Competitive
Maneuvers, Feats of Physical Skill or Dexterity, and Other Uncopyrightable
Movements in Choreographic Works
Choreography and pantomime are the only types of works comprised exclusively of
bodily movements that are eligible for copyright protection under Section 102(a)(4) of
the Copyright Act. Because choreography is a subset of dance, a work of authorship
cannot be registered as a choreographic work unless it is comprised of dance steps,
dance movements, and/or dance patterns.
Non-expressive physical movements, such as “ordinary motor activities” or “functional
physical movements” — in and of themselves — do not represent the type of authorship
that Congress intended to protect as choreography. Registration of Claims to Copyright,
77 Fed. Reg. at 37,607. The U.S. Copyright Office cannot register a claim to copyright in
such non-expressive activities. See Bikram's Yoga College of India, L.P. v. Evolation Yoga,
LLC, 803 F.3d 1032 (2015) (declining to extend copyright protection in a book
describing yoga poses to the yoga poses themselves). Examples of non-expressive
physical movements that cannot be registered with the Office include exercise routines,
aerobic dances, yoga positions, and the like.
The Office cannot register claims to copyright in athletic activities or competitive
maneuvers as such, because they do not constitute copyrightable subject matter under
Section 102(a)(4) of the Copyright Act. See NBA v. Motorola, 105 F.3d 841, 846-47 (2d
Cir. 1997); Registration of Claims to Copyright, 77 Fed. Reg. at 37,607; but see H.R. REP.
NO. 94-1476, at 52 (1976), reprinted in 1976 U.S.C.C.A.N. at 5665 (explaining that
Congress intended to protect the telecast of “sports, news coverage, live performances
of music, etc.,” provided the telecast is simultaneously recorded).
Examples:
• Football players
• Slam dunking maneuvers.
• Skateboarding or snowboarding.
These types of activities are typically performed by skilled players for the enjoyment of
an audience and in some cases they may be accompanied by music or narrative text
provided by a play-by-play announcer. However, competitive activities are comprised of
athletic maneuvers rather than dance steps, and such maneuvers are non-expressive.
Competitive activities lack the capacity for uniform performance because each contest
usually involves a different set of maneuvers, and any dramatic content involves the
“drama” of the competition rather than a story that is told or a theme that is evoked by
the players' movements. See NBA, 105 F.3d at 846 (“[B]asketball games do not fall
within the subject matter of federal copyright protection because they do not constitute
‘original works of authorship' under 17 U.S.C. § 102(a)” although “recorded broadcasts
of NBA games – as opposed to the games themselves – are . . . entitled to copyright
protection.”).
For similar reasons, the Office cannot register feats of physical skill or dexterity or other
choreographed productions that do not involve the movement of a dancer's body.
See NBA, 105 F.3d at 846-47; 77 Fed. Reg. at 37,607.
Are there any other types of intellectual property protection?
If you cannot obtain protection for the yoga position, stance, or pose, you might still be able to seek copyright protection for the following (meaning you could have the right to sue anyone who copied your work under the copyright infringement laws, and also be able to license your work to others for profit):
1. Dance videos – ex. a dance moves training video (the video can be copyrighted)
2. Pictures or compilations of dance move or yoga position (the photo for a book for example could be copyrighted, as could a book itself).
3. Podcasts that describe your moves in detail (copyright the podcast or webpage)
4. A film that incorporates the dance move (copyright the film or video)
These are just a few ideas.
Contact a copyright protection & infringement law firm
If you find yourself embroiled in a dispute over copyrighted dance, yoga, or other creative works, contact us to discuss your case. We offer a free initial consultation at (877) 276-5084. We have extensive federal court experience and excellent client reviews.
Comments
There are no comments for this post. Be the first and Add your Comment below.
Leave a Comment