COPYRIGHT IN CHOREOGRAPHIC WORKS

I. INTRODUCTION

The dance is one of the oldest forms of human expression. Originally, perhaps, the bodily movements of a dance were a spontaneous expression of the dancer's emotions for his own satisfaction. Group dances following an established pattern, as in a ritual dance or a community folk dance, became a means of expressing the feelings of the group of dancers. Ultimately, the dance was developed into an art form, a work of choreography for theatrical presentation, by which bodily movements to be performed by dancers are devised to convey thought or feeling to an audience.1

A dance created for theatrical performance may be comparable to a drama to be spoken and acted, or a musical composition to be performed, as an art form by which thought or feeling is conveyed to an audience.2

Herein lies an essential distinction between those relatively simple dances, such as the steps of a ballroom or other social dance, devised primarily for the enjoyment of the dancers themselves, and those more intricate dances, such as ballets, devised for execution by skilled performers for the enjoyment of an audience. "Choreographic work" is commonly understood as referring to the latter.

The word "choreography" is derived from the Greek words "choreia," meaning dance, and "graphikos," meaning to write. Webster's New International Dictionary (Merriam, 2d edition, 1939) gives the following three definitions of "choreography": (a) the "art of representing dancing by signs, as music is represented by notes"; (b) "dancing, especially for [the] stage"; and (c) "the art of arranging dances, especially ballets." 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.

Despite the antiquity of the dance as a form of theatrical art, it was not until recently that standard forms of notation for dance movements-for example, the Laban system of notation, first published in 1928-were devised and generally utilized by the practitioners of the art.3 Another means of recording the movements of a dance in graphic form is the motion picture, also a relatively recent device. Prior to these developments, the knowledge of the dance

1 See CURT SACHS, WORLD HISTORY OF THE DANCE, Chapters 6 and 7 (1937). A dance may be an integral part of a drama otherwise presented through speech and action, or may be an independent production. A dance, like a drama, may be the core of a spectacle involving also the use of scenery, costumes, sound effects, etc. 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 import of the dance.

See Ann Hutchinson, The Preservation of the Dance Score Through Notation, in SORELL, THE DANCE HAS MANY FACES, 49-53 (1951).

creations of a choreographer was largely a matter of memory, and the preservation of a particular dance depended upon one person teaching it to another by word of mouth and demonstration. It was possible, of course, to write a textual description or make a series of pictures of the dance movements, but this was rarely done; it was laborious to do so, and it was doubtful that the text or pictures would be sufficiently precise for the performance of the dance as its author had intended.

Moreover, in the absence of a record of the dance movements in some fixed form, it would often be extremely difficult, if not impossible, to determine whether a choreographer's creation was being reproduced in a dance performed by others.

These practical obstacles to securing copyright protection for choreographic works have been overcome to a large extent by the development of standard systems of dance notation and the motion picture.5

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At the same time, the use of choreography as a medium of public entertainment-on the stage, in motion pictures, and in televisionhas expanded greatly in recent years. The question of copyright protection for choreographic works has therefore become a matter of increasing importance.

II. THE PRESENT LAW

A. COMMON LAW PROTECTION

No case has been found in which literary property rights under the common law have been accorded to a choreographic work. Nevertheless, if a choreographic work constitutes an original work of authorship, there would seem to be no reason why the common law protection accorded to unpublished works of authorship generally would not extend to an unpublished choreographic work in the same circumstances. What constitutes a work of authorship in the realm of choreography will be discussed below.

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B. COPYRIGHT PROTECTION UNDER THE STATUTE

1. Copyrightability for choreographic works.-The copyright law (title 17 of the United States Code) does not specifically mention choreographic works among the categories of copyrightable works enumerated therein. However, "dramatic compositions" are among the enumerated classes into which copyrightable works are divided for the purpose of registration (sec. 5(d)), and choreographic works have been treated as a species of dramatic compositions.

4 The Laban system, as a notable example, looks far from simple to the layman; but it can be read, and the dance can be performed therefrom, by those who learn the skill; and it is now accepted as a standard form of notation by specialists in the field of choreography. See Ann Hutchinson, rp. cit. note 3, supra, at 51-61. Some choreographers have mentioned cost as a practical obstacle to the use of motion pictures as a mere device for recording a dance (as distinguished from a theatrical motion picture made for exhibition). See Ann Hutchinson, op. cit. note 3, supra, at 57-58; AGNES DE MILLE, AND PROMENADE HOME, 258 (1956).

Such rights in a dance were asserted by the plaintiff in Savage v. Hoffman, 159 Fed. 584 (C.C.S.D.N.Y. 1908), but the court did not decide that question; it held that even if such rights existed they did not belong to the plaintiff. Perhaps the absence of cases may be attributed to the fact that until recently choreographic works have rarely been recorded in a tangible form.

7 One writer at least seems to have no doubt that common law literary property rights extend to unpub lished choreographic works which have been recorded in some tangible form: Mirrell, Legal Protection for Choreography, 27 N.Y. U.L. REV. 792, 794-800.

As to the protection afforded by the common law to unpublished works generally, see Strauss, Protection of Unpublished Works [Study No. 29 to appear in a later committee print in the present series].

The courts have recognized that silent action in a theatrical performance may constitute a drama. In Daly v. Palmer, decided in 1868, it was held that written directions for movements and gestures conveying an original story sequence constituted a dramatic composition. In Kalem Co. v. Harper Bros., holding that the action in a silent motion picture was a dramatization of the story in the novel "Ben Hur," Justice Holmes said:

Drama may be achieved by action as well as by speech. Action can tell a story, display all the most vivid relations between men, and depict every kind of human emotion, without the aid of a word. It would be impossible to deny the title of drama to pantomime as played by masters of the art.

Not all productions to be performed on the stage or screen, however, are dramatic. A series of unconnected scenic effects in the nature of tableaux,10 a stage production consisting of a performer singing a series of songs in various costumes interspersed with motion pictures showing the performer changing costumes," and the narrative description of a fictitious sporting contest (a roller skating "derby," the description apparently being designed to illustrate the rules of the contest) 12 have been held not dramatic and denied the public performance rights accorded to dramatic compositions.13

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The case most directly in point on the question of what constitutes a dramatic dance is Fuller v. Bemis, decided in 1892. The plaintiff in that case had filed a copyright claim in a written description of the movements of a dance to be performed on the stage. She sued the defendant for copyright infringement in giving an unauthorized public performance of the dance, which she contended was a "dramatic composition." The court, denying relief on the ground that the dance was not a dramatic composition, stated:

An examination of the description of complainant's dance, as filed for copyright, shows that the end sought for and accomplished was solely the devising of a series of graceful movements, combined with an attractive arrangement of drapery, lights, and shadows, telling no story, portraying no character, depicting no emotion. [Emphasis added.]

And the court continued:

Surely, those [movements] described and practiced here convey and were devised to convey, to the spectator, no other idea than that a comely woman is illustrating the poetry of motion in a singularly graceful fashion. Such an idea may be pleasing, but it can hardly be called dramatic.

It seems clear that an original dance which tells a story is a form of dramatic composition and is therefore copyrightable as such. The quotation above from Fuller v. Bemis and from Justice Holmes in the Kalem decision indicate that a dance which portrays a character or depicts an emotion may also qualify as a dramatic composition.15

6 Fed. Cas. 1132 (No. 3,552) (C.C.S.D.N.Y. 1868). This case involved the "railroad scene" that became well known, in which the hero was tied to a railroad track by the villain and was rescued from the onrushing train at the last moment by the heroine.

222 U.S. 55 (1911).

10 Martinetti v. Maguire, 16 Fed. Cas. 920 (No. 9173) (C.C.Cal. 1867).

11 Barnes v. Miner, 122 Fed. 480 (C.C.S.D.N.Y. 1903).

12 Seltzer v. Sunbrock, 22 F. Supp. 621 (S.D.Cal. 1938).

As further examples, it seems safe to assume that the usual stage performance of a magician, a juggler, or an acrobat would not be considered dramatic.

14 50 Fed. 926 (C.C.S.D.N.Y. 1892).

15 Fuller v. Bemis, as well as the cases cited supra in notes 10 and 11, has been criticized on the supposition that it considered the telling of a story an essential element of a dramatic work: Mirrell, op. cit. note 7 supra, at 807-809. Mirrell suggests, at 805, that drama is "a stimulator of emotions and thought. The use of the story medium is only one of the means by which a dramatic composition may accomplish this." And he continues: "The dance can achieve this conveyance of ideas and stimulation of emotional responses. Dance creates an emotional response to its beauty of pattern and rhythm even when the ideas are not obvious."

The Copyright Office Regulations 16 provide for the registration of copyright claims in dramatic works of choreography, and distinguish between such works and nondramatic dances. Thus, section 202.7 of the Regulations, pertaining to "Dramatic and dramatico-musical composition (Class D)," says:

Choreographic works of a dramatic character, whether the story or theme be expressed by music and action combined or by actions alone, are subject to reg istration in Class D. However, descriptions of dance steps and other physical gestures, including ballroom and social dances or choreographic works which do not tell a story, develop a character or emotion, or otherwise convey a dramatic concept or idea, are not subject to registration in Class D.

In the same vein, Circular No. 51 issued by the Copyright Office to provide general information regarding the registration of copyright claims in choreographic works, contains the following:

A choreographic work is a ballet or similar theatrical work which tells a story develops a character, or expresses a theme or emotion by means of specific dance movements and physical actions.

The dance must convey a dramatic concept or idea. ***

*** it is not possible to secure copyright protection for a mere dance step or variation as such, apart from a developed choreographic work in which it appears. Ballroom, social, and folk dance steps are not considered copyrightable material.

2. Fixation of choreography.-In order for a choreographic work to be copyrighted under the statute, either a copy of the work in unpublished form must be deposited for registration in the Copyright Office," or copies must be published with the required notice of copyright.18 In either case the work must be represented in some fixed form of "copy" from which the dance movements can be perceived and performed.

Thus, Copyright Office Circular No. 51 says:

To qualify for registration in Class D, [i.e., as a dramatic or dramatico-musical composition], a choreographic work must meet two basic requirements:

(a) The dance must convey a dramatic concept or idea, and must be complete enough for performance without further development.

(b) The particular movements and physical actions of which the dance consists must be fixed in some sort of legible written form, such as detailed verbal descriptions, dance notation, pictorial or graphic diagrams, or a combination of these.

Some choreographic works have been deposited for registration in the Copyright Office in the form of a textual description or in the Laban system of notation; and in one case, at least, a motion picture was deposited as the fixed form of a choreographic work.19

Copyright Office Circular No. 51 goes on to point out that registration may also be made in Class A of "text matter concerning choreography or describing a choreographic work, when published with appropriate statutory notice"; and that "motion pictures which depict ballets and other dance forms may be registered under Class L or M."

Regarding the possibilities just mentioned of securing copyright registration for text matter or for motion pictures in relation to choreography, the following distinctions should be noted.

1637 C.F.R. chap. II, as amended; 24 Fed. Reg. 4955 (1959).

17 17 U.S.C. § 12.

18 17 U.S.C. 10. After publication two copies are to be deposited for registration: 17 U.S.C. § 13. "Pub lication" denotes the distribution of copies to the public (see 17 U.S.C. §26). Choreographic works are designed to be performed rather than "read"; and since public performance is not publication (see Ferris v. Frohman, 223 U.S. 424 (1912)), choreographic works will usually be unpublished.

19 A number of motion pictures deposited for registration as such have contained dance sequences, but these have presumably been intended for exhibition as motion pictures.