Music Law: Copyright of Dance Choreography
By Justin M. Jacobson, Esq.

Over the years, there has been an on-going public debate regarding the copyright protection afforded to the “creator” of a dance. This includes a dispute brought by Fresh Prince Of Bel-Air actor, Alfonso Ribeiro for his “Carlton Dance” against game developer, Epic Games. Furthermore, several other lawsuits were filed against Epic Games for the alleged usage of protected dance choreography in their game, Fortnite. In particular, the game publisher was providing its users with the ability to purchase in-game items referred to as “emotes” that were digital representations of specific dance moves. In-game “emotes” are “movements” that a game character can perform while playing the game. “Emotes” can either be purchased through the game developer’s in-game marketplace or they can be earned through achievements from continued gameplay. As a result of the inclusion of dance “emotes” in Fortnite, several musicians claimed that these “emotes” (dance moves) infringed on their protected dance movements. This included claims from the creator of the “2 Milly” dance, Terrence “2 Milly” Ferguson, one filed by the “Backpack Kid,” rapper Blocboy JB for his “Backpack Kid dance” as well as a claim by the “Orange Shirt Kid,” for alleging copying his signature dance move “Random,” which was “being sold in Fortnite [labeled] as [the] ‘Orange Justice’” dancing “emote.” With the rise in frequency of such lawsuits aimed at the use and reproduction of allegedly copyrighted dance choreography, it is important for a party incorporating another party’s dance moves into their work as well as for a creator to understand what can be protected and what an individual can do to apply for protection in their own unique dance choreography.

Copyright of Dance Moves – How to Copyright Dance Moves and Choreography

Specifically, the U.S. Copyright Act of 1978 was enacted, and it provided copyright protection for “pantomimes and choreographic works” that are created after January 1, 1978, and which are fixed in some tangible medium of expression. (17 U.S.C. § 102(a)(4)) Prior to the enactment of this copyright legislation, a creator was required to attempt to register these types of works as “dramatic compositions.” As a result of this copyright legislation, the U.S. Copyright Office provided some additional guidance on the elements related to the copyright registration of dance choreography in Circular 52. In this copyright circular, choreography is defined as “the composition and arrangement of a related series of dance movements and patterns organized in a coherent whole.” (Copyright Office Circular 52) This document also included information on some typical elements that are used to determine whether a fixed work is protectable, including examining whether the creation features “[r]hythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as [on] a stage;” if it features “[a] series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole;” and/or, if the dance encompasses a “story, theme, or abstract composition conveyed through movement.” (Copyright Office Circular 52) There is also additional analysis on “whether the work is present[ed] before an audience;” whether the work is “[p]erformed by skilled individuals;” and, whether the work has any “[m]usical or textual accompaniment” to it. (Copyright Office Circular 52)

If a work contains some or all of the above-mentioned elements, then the choreographic work might be eligible for copyright protection in the United States. Furthermore, the protected dance routine must also be fixed in sufficient detail to permit the protected routine to act as a “template” or “blue-print” for subsequent dance performances consisting of the same protected moves. This means that choreographic works provided to the Copyright Office for registration can be submitted as a video recording of the performance, as a document containing “[d]ance notation such as Labanotation and Benesh Dance Notation,” or, as a textual, photograph or pictorial depiction of the complete dance. (Copyright Office Circular 52) For example, in 1952, a Laban score was accepted by the Copyright Office to permit dance creator Hanya Holm to copyright the unique choreography from the Broadway musical, “Kiss Me Kate.”

Additionally, there are also several types of dances and movements that cannot receive copyright protection. For instance, single movements or dance steps, or even a few movements or steps, by themselves are not copyrightable. This includes a “set of movements whereby a group of people spell out letters with their arms,” (i.e., YMCA) “yoga positions,” “celebratory end zone dances,” a “basic waltz step,” or even “the grapevine.” (Copyright Office Circular 52)

 “Social dances” are also not protected by U.S. copyright law. “Social dances” differ from protected choreography based on who the intended participants of the dance are. Generally, “social dances” are “intended to be performed by members of the public for the enjoyment of the dancers themselves;” while, copyrighted choreographic works are intended to be performed by “skilled performers before an audience” as opposed to the public. (Copyright Office Circular 52) Some examples of social dances that are ineligible for copyright protection include: “[b]allroom dances, [f]olk dances, [l]ine dances, [s]quare dances, [and] [s]wing dances.” (Copyright Office Circular 52)

Furthermore, “functional physical movements, feats of physical skill or dexterity, and ordinary motor activities” are ineligible for registration as dance choreography. (Copyright Office Circular 52) Some examples of “ordinary motor activities” include “[g]eneral exercise routines;” “[a]thletic activities, such as a […] tennis swing, a golf swing, or a unique slam-dunk maneuver;” [s]kateboarding or snowboarding tricks;” “[y]oga poses and sequences;” as well as “[a] compilation of any of the above types of movements.” (Copyright Office Circular 52) This means that individual dance steps that act as “building blocks” of a larger dance are ineligible for copyright protection; however, a complex, documented choreographed dance incorporating several individual “building blocks” may be registered.

Overall, there is potential for its creator to receive copyright protection for their work depending on the sophistication of a choreographic dance. However, in order to be eligible, the work must be fixed in a medium whereby it can be viewed, and the actual dance moves must be more than “ordinary” physical movements. As a result, a creator desiring to protect a specific dance should consult with a professional in the area to determine what, if anything can be protected, and what the best methods to achieve appropriate copyright protections.

This article is not intended as legal advice, as an attorney specializing in the field should be consulted.

© 2022 Justin Jacobson Law, P.C.