The United States has seen a tremendous growth in the field of IPR, so much that the IP related industries have contributed majorly to the US economy. The nation's artistic expand is unmatched, with the world's most prestigious artists living within its bounds, creating the next big thing be it on a canvas, recorded, staged or scripted. Creators worry about the authenticity of these works becoming meaningless with time, as more entities continue to rip off such works and pass them off as their own.

Copyright protection is an essential tool required to protect the originality and creativity that goes into these creations. Dancing, in particular, has a lot of popular moves or trends that are constantly being endorsed by influencers to spread among the masses. Are there any artistic rights given to the creators of these moves?

What constitutes a choreography and how specific is the law in defining it? This paper answers these questions and discusses in detail how dance choreographies can qualify to get protection under the copyright laws in the US in today's day and age, by analyzing how the law has evolved over time and the loopholes which exist till date.

The Law
Article I, Section 8, clause 8 of the US Constitution gives the power to the Congress to promote the progress of useful arts by securing the authors' exclusive rights to their creations. This is famously known as the Progress Clause.

The Copyright Act in 1909 did not cover choreography as protection back then was given only to useful arts, however, things eventually changed in 1947 when the realm of protection was extended to choreographic works as well, but only if such a choreography would qualify under a dramatic act, or a dramatico-musical composition.[1]

In the 1960s, the Congress finally started to increase the reach of copyright protection to cover abstract choreographies, but it was necessary for abstract to be defined because modern choreographies are frequently formed through a chain of abstract movements, and not precise steps.[2] It wasn't until 1976 that the Congress categorized choreography as a separate viable form of art, allowing copyright protection for the same.[3]

The Copyright Act, 1976 lays down the requirements for copyright registration of a choreographic piece under Section 102(a)(4) as 'pantomimes and choreographic works', that being qualification of creation as a choreographic work, originality, and fixation.[4] Choreographic work here means the arrangement and composition of dance patterns and music, which are usually intended to be executed to music; originality covers original, creative and uncopied work; and fixation means fixing the piece in a tangible format.[5]

The law evolved further to allow works being created under pantomimes and choreographic works post January 1, 1978, to be protected further for 70 years after the death of the creator.

Originality and Fixation

Originality and creativity go hand in hand. A work that lacks originality is not protected by copyright, although it is easy to show component of originality in any piece. A grocery list, list of phone numbers or a mechanically produced copy of a map, for example, would not be counted under original works, and hence not be qualified for protection. On the other hand, a novel, a drawing, a musical composition or anything created by someone in the first instance would be given protection.

Non-original elements of a work are not protected. A book, for example, may be copyrighted, but non-original elements such as facts or elements in the book not created by the author may be copied freely without resulting in infringement. Copyright protection could be limited to works of high quality or works showing creative elements that would not be obvious to one working in the field.

The case, Feist Publications v. Rural Telephone Service[6], set the Feist Standard of Originality which stated that originality has two requirements the work must be independently created by the author, as opposed to copied from other works, and that it possesses at least some minimal degree of creativity a telephone book publisher simply listing the subscribers in alphabetical order is not putting in any creative effort because this method has been used over time in telephone books and is not a creative selection or arrangement of information, however, a new method to arrange the names on the list could be considered creative in terms of selection.

For dance and choreography, originality is determined by how the piece is set physically, how it's been composed, and how the execution is coming about.[7] Creativity and originality are showcased by how different movements are put together to form a combination, which is usually, but not necessarily, accompanied by music. Such combinations of movements are what we consider choreographic works. Originality and creativity, however, just like any other media, are not enough to provide copyright protection to such works. The piece needs to be fixed as evidence in order to obtain protection from the law.

Fixation refers to works being fixed in tangible forms, as discussed above. Copyright infringement may occur when a copyrighted work is fixed in a copy or record without the permission of the copyright owner. Unauthorized adaptation, performance, distribution or display may also result in infringement.

Fixation is a useful tactic when it comes down to analyzing infringement, as it is used to compare the allegedly infringing work with the copyrighted work to see if copyrighted expression has been copied or if there is substantial similarity to prove infringement[8]. It is, therefore, a necessary element for attaining federal copyright protection.

The famous case of Horgan v. MacMillan, Inc.[9] is important not only in terms of establishing how essential fixation is to copyright protection, but also with respect to drawing a contrast between choreography in performance form and that in book form. The case dealt with the issue of whether photographic depiction of a ballet choreography was sufficient fixation in order to provide copyright protection.

The District Court was of the opinion that mere pictures of dancers just showed stills that could not possibly be used to reproduce the entire ballet, and therefore, one could not create a stage performance with the help of photographs alone. The Appellate Court, however, overturned the decision of the District Court and stated that a picture capturing even a single dance movement can communicate a lot.

Photographs of dancers with different poses and attitudes, at various instances of time could give any ordinary person an idea as to how the movement could have happened within the piece. This decision shows how important it is for courts to take into consideration expert opinion in such cases, considering the lack of clarity on the definition of choreography within the provision. A judge in a court cannot be given the sole authority on making a decision with respect to whether or how a piece can or cannot be recreated.

Without fixation, it is not possible to attain a federal copyright. For example, if a Jazz dancer choreographs a piece and performs it in front of an audience, the piece will amount to an original choreography piece, fulfilling the basic creativity requirement, but if there is no recording or photographic fixation of the same, it would not be possible to provide federal copyright protection to it.

The requirement for fixation is not difficult to meet. The choreographer could simply make notations around the piece, or record a video, or take photographs of the dance. Anyone making subsequent copies of the same would be infringing the copyright that is now attached to the choreographic work. Even if a dancer has committed his/her piece to memory and performed it publically, copyright protection cannot be provided without authorized fixation.

Choreographic works which cannot be copyrighted

It is clear under law and from a general understanding of choreographic copyright that individual dance moves cannot be copyrighted as they do not form a choreography unless combined together fluidly as a composition of moves. However, there are various other forms of choreographies or combinations of moves which, by law, have been deemed un-copyrightable.

According to the U.S. Copyright Office Circular 52, dance categories not included under copyrightable material include social dances ballroom, folk, swing, line and square dances, motor and athletic activities like sports, yoga, dressage routines, skateboarding or snowboarding tricks etc., routines performed by non-human entities like animals, sculptures, robots and other inanimate objects, and choreographies derived from older pieces with slight moderations which do not cross the minimum creativity level.

Recently, multiple lawsuits[10] have been filed against Epic Games, the creators of Fortnite (a video game released in 2017) over the use of dance emotes, the routines behind which have been copied from various music videos and other original content available on different media, which is also really popular worldwide. The routines shown in the game are not more than a few seconds long, but are exact copies of those executed by the plaintiffs on television.

The dilemma that arises in these cases is whether such routines, which have been fixed in video or photographic format, prima facie qualify for copyright protection. Circular 52 lays down certain guidelines which state that routines which are extremely short or meant for public entertainment cannot receive copyright protection. They also state that choreographic works which have some amount of creative expression involved, and are meant to be or have been performed by those skilled in the field and in front of an audience are the only kinds which can be registered for copyright. A simple routine with no creative expression cannot qualify for protection; but what is expression, and why do the copyright laws require it in a choreography?

Expression, here, could mean ideas which are non-verbal in nature, and portrayed in the form of a message delivered by the choreographed piece. Expression is assumed to be a part of the choreography, as the choreography is assumed to have a story, idea or message behind it. This, perhaps, is because of the fact that the law took plenty of years to evolve in order to cover choreography as a field separate from dramatic, musical or theatrical works, which more often than not, have dramatic, comic, historical, sexual and various other expressions, emotions or ideas behind their creation.

Dancing, nowadays, is done mostly out of fun and passion. Even commercially, genres like hip hop, house, urban, pop and lock, dancehall etc. are gaining popularity, even though they usually have no idea or expression backing them as such. There is no message intended to be delivered to the audience, that too if there is an audience present to view the choreography at all.

Most professional dancers today simply create choreographies, videotape them and upload them on social media and video streaming sites like YouTube. Modern professional dancing consists of quicker body movements which simply go with the rhythm of songs, with no idea to express and mostly, no audience to show to, so does that mean that such choreographies shouldn't receive protection under copyright laws?

Coming back to the discussion on the pending lawsuits, it is hard to tell whether the infringement suits against Epic Games would stand. According to the complaint filed by Ferguson[11], the routine, also called the Milly Rock, is his original creation, which is easily distinguishable from other choreographies.

Moreover, it is so popular that a lot of players (of the game, Fortnite) also recognized the moves from his music video from 2011, as a lot of celebrities have also performed it on numerous occasions after having received permission from Ferguson in exchange for compensation. However, the routine hasn't been registered for copyright protection, which is what brings down the probability of Ferguson winning the suit close to half. This applies to the plaintiffs in the other two lawsuits as well.

This issue is fundamentally problematic because apart from unauthorized copying of Ferguson's routine, the creators of the game have also in some manner taken away his identity. Those who play the game are more likely to believe that the Milly Rock is Epic's own creation. This could create a number of hurdles for Ferguson because in the future, other celebrities would be less likely to seek permission from him for performing his routine due to lack of possibility of infringement and the legal consequences thereof. His earnings will be affected, and he would no longer be given absolute credit for his own work by the masses.

Awareness amongst professional choreographers

Another landmark case in the history of copyright law in the US is Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc.[12] Martha Graham, a famous dancer and the sole proprietor of her dance school, gave all her works' rights to a non-dancer named Ronald Protas, who had been hired for an important position at the school.

After her death, Protas waited for a couple of years to start the proceedings for protecting her work. However, the Copyright Office questioned him on the grounds that the works concerned had been published years ago, and could thus not receive copyright protection. Protas was even suspected of deliberate misrepresentation with respect to Martha's works. These problems wouldn't have arisen had Martha herself registered for protection of her works all those years ago, instead of transferring ownership rights to another party. This case is important as it highlights the need for professional dancers to be aware of the law and protecting their works in order to avoid exploitation and legal hindrances.

Professional dancers in today's day and age have a lot to lose in the absence of federal protection of their works. The choreographies that they create are what define them and give them an identity and a livelihood. In order to fight these loopholes in the law with regards to choreographic works, the dance community should educate itself on legal issues surrounding intellectual property, and the rights of choreographers.

Artists in general need to be aware of the legal complexities which they would likely be faced with at any point in time. Dance curriculums could include a basic study of the copyright law - how it applies to choreography and the requirements laid down for registering a choreography for protection.

While video-graphed choreographies have a wider reach in terms of being seen by the public, it is harder to prove ownership or originality after a point because of unauthorized copying of said work as compared to organized public performances. It is also a bit unrealistic and impractical to assume that the makers of the law would be having full knowledge of the complex nature of dance.

This is precisely why it is important to include legal education within the current arts curricula so that artists could be included in proceedings in order to give expert opinion with respect to works concerned, and also be of help to the law-makers in identifying the specifics of the various arts and incorporate a better understanding of them into the statute.

Conclusion
Copyright laws grow with advancements in jurisprudence, which further basis itself on case to case analysis. In a country like the US, with rapidly emerging cultures, the law will never be sufficient in terms of determining protection and sanctions in each case. Nothing is objective, because factors necessary to classify copyrightable material � i.e. originality and fixation � are extremely broad terms.

What is interesting, is the different means by which they can be interpreted in different cases, but this should not be left to the judges alone. This calls for interference and interpretation via expert opinion. Newer trends need to be dealt with by putting in place newer provisions. The law on protection of 'pantomimes and choreographies' is fairly new, and needs to undergo more work in order to be more specific in nature, and the shortcomings which exist today have to be covered by those being affected by them through more lawsuits and quick action.

End-Notes:

1. Cheryl Swack, 'The Balanchine Trust: Dancing Through the Steps of Two-Part Licensing', 6 Jeffrey S. Moorad Sports L.J. 265, 272-273 (1999)
2. Ibid, pp. 275
3. Supra note 1, pp. 276
4. Copyright Office Circular 52
5. Ibid
6. 499 U.S. 340 (1991), as cited in Bitton, Miriam, 'Protection For Informational Works After Feist Publications v. Rural Telephone Service Co.', Fordham Intellectual Property, Media and Entertainment Law Journal, Volume 21, No. 3, 2011
7. Supra note 1, pp. 278
8. Julie Van Camp, 'Copyright of Choreographic Works', 1994-1995 Entertainment, Publishing and the Arts Handbook, pp. 59-92 (1994)
9. 621 F.Supp. 1169, 1170 (S.D.N.Y. 1985), as cited in note 8
10. Terrence Ferguson v. Epic Games, Inc. (First Amended Complaint), Case no. 2:18-cv-10110-AS, Anita Redd & RH Performer, LLC v. Epic Games, Inc. (Complaint), Case no. 2:18-cv-10444, Alfonso Ribeiro v. Epic Games, Inc. (Complaint), Case no. 2:18-cv-10412, The United States District Court for the Central District of California, Dec 17, 2018
11. Terrence Ferguson v. Epic Games, Inc. (First Amended Complaint), Case no. 2:18-cv-10110-AS
12. 153 F. Supp. 2d 512 (S.D.N.Y. 2001)