A book or article about choreography-for example, a history of the dance or a critical appraisal of a particular dance or style of dancing-may be copyrighted as a literary work, but it would not constitute a dramatic work of choreography. Even a textual description of a dance would not seem to constitute a dramatic work of choreography if the description is so general and lacking in detail that the dance could not be performed therefrom. On the other hand, as indicated in the foregoing quotation from Circular No. 51, a full textual description of the movements of a dramatic dance, sufficiently detailed to serve as directions for its performance, may well constitute the fixed written form of a work of choreography.

A motion picture of a dance shows the dance fully in a fixed "written" form from which it could be reproduced in a performance on the stage or for another motion picture. Motion pictures may, in fact, be used as the medium of recording the dance movements in a fixed form, and an original dramatic dance so fixed would appear to qualify for copyright protection as a work of choreography.20

3. Rights in copyrighted choreographic works. Copyrighted works of choreography, being a species of dramatic works, would appear to have protection under the statute similar to that provided for dramatic works.

The statute gives the copyright owner of all classes of copyrighted works the exclusive right "to print, reprint, publish, copy, and vend" the work.21

Of the greatest practical importance for works of choreography is the right accorded specially to dramatic works, "to perform or represent [the dramatic work] publicly."22 It should be observed that this right in dramatic works extends to all public performances, in contrast with the corresponding right of public performance "for profit" in the case of nondramatic musical works 23 and public delivery "for profit" in the case of nondramatic literary works.24

It may also be noted that herein lies a vital difference between a choreographic work in the form of a complete record from which the dance movements could be performed, and a textual description of a dance in such general terms that the dance could not be performed therefrom. Copyright in the latter will protect it against public "delivery" for profit, but this refers only to the public reading or recitation of the text.

Also important for works of choreography is the right "to make or procure the making of any transcription or record [of a dramatic work] by or from which *** it may ** be exhibited, performed, represented, produced, or reproduced";25 and this is supplemented by the right "to exhibit, perform, re-present, produce, or reproduce it." 26

10 The copyright in a motion picture as such has been held to protect an original story sequence depicted there in against reproduction in another motion picture or in a performance for television. See Universal Pictures Co. v. Harold Lloyd Corp., 162 F. 2d 354 (9th Cir. 1947); Loew's Inc. v. Columbia Broadcasting System, 239 F. 2d 532 (9th Cir. 1956), aff'd by an evenly divided court (the division apparently being on another point) in 356 U.S. 43 (1958). By analogy, it can be argued that the copyright in a motion picture containing an original dramatic dance would afford similar protection to the dance.

21 17 U.S.C. § 1(a).

22 17 U.S.O. 1(d). 23 17 U.S.C.1(e).

24 17 U.S.C. § 1(c).

25 17 U.S.C.81(d). This would apply, for example, to the making of a motion picture of a dramatic work. 24 17 U.S.C.1(d). This supplemental provision, if taken literally, would seem to confer a general right to exhibit, perform, etc. the work itself, which would appear to be repetitious of the rights specified in other provisions and in some respects inconsistent therewith. Presumably it was intended to refer to the use of a "transcription or record" for exhibition, performance, etc.

98

Other rights accorded by the statute to dramatic works, perhaps of lesser practical importance for choreography, are the right "to convert [a drama] into a novel or other nondramatic work," 27 and the right "to vend any manuscript or record" of an unpublished dramatic work.28

III. INTERNATIONAL CONVENTIONS AND FOREIGN LAWS

A. INTERNATIONAL CONVENTIONS

Article 2(1) of the Berne Copyright Conventions (1908 and subsequent revisions) includes, in its specification of works to be protected by copyright, "choreographic works and entertainments in dumb show, the acting form of which is fixed in writing or otherwise." The Berne Conventions make no other mention of choreographic works specifically; the rights of authors which may be applicable to choreographic works are specified with reference to dramatic works "9 or to all protected works generally.30

Article 3 of the Washington Copyright Convention of 1946 mentions, among the categories of works to be protected, "choreographic works and pantomimes the stage directions of which are fixed in writing or other form." No other mention is made of choreographic works; the rights of authors are provided for in general terms for all protected works (art. 2).

The Universal Copyright Convention mentions "dramatic*** works" among those to be protected (art. 1); it makes no express mention of choreographic works.

The Buenos Aires Copyright Convention of 1910 names "choreographic *** compositions" among the categories of protected works (art. 2). The rights of copyright owners are provided for in general terms for all protected works (art. 4).

The United States is not a party to the Berne or Washington Convention. It does adhere to the Universal and Buenos Aires Conventions.

B. FOREIGN LAWS

The copyright statutes of many foreign countries mention "choreographic works" (together with pantomimes) explicitly, usually as a separate category of protected works. In the United Kingdom 32 and the British Commonwealth countries,33 "dramatic work" is defined as including a "choreographic work or entertainment in dumb show." In a few countries that are parties to the Berne or Washington Conventions, no specific mention is made of choreo

27 17 U.S.C. §1(b). This would seem to have no practical application to a dance unless it told an original story that could be narrated in nondramatic form.

28 17 U.S.C. §1(d). This was apparently designed to give the copyright owner of an unpublished dramatic work control over the manuscripts or other copies from which the work could be performed. This provision seems to be repetitious of § 1(a).

29 See Article 11 of the 1948 Brussels Revision, providing for the rights of "public presentation" of dramatic works and "public distribution" of such presentation.

30 See Article 8, 11 bis, 12, 14, of the 1948 Brussels Revision.

31 E.g., Argentia, Austria, Belgium, Columbia, Finland, France, Germany, Italy, Mexico, The Netherlands, Norway, Portugal. Denmark and Sweden use the term "ballets." and pantomimic works" as "theatrical works expressed by gestures or other motions of the body." copyright laws of these and other countries mentioned below are set forth in COPYRIGHT LAWS AND Austria defines "choreographic TREATIES OF THE WORLD (published by UNESCO and the Bureau of National Affairs, 1956 with The annual supplements).

32 U.K. Copyright Act, 1956, § 48(1).

33 E.g., Canadian Copyright Act, REV. STAT. 1952, ch. 55, § 2(g); Indian Copyright Act, 1957, § 2(h). 34 E.g., Iceland, Japan, Spain (parties to the Berne Convention); Brazil (party to the Washington Convention).

graphic works; perhaps such works are deemed to be protected in those countries (as the Conventions require) as a species of dramatic works.

In many countries (as in the Berne and Washington Conventions) the reference to choreographic works is qualified by the requirement, variously phrased, that "the acting form" (or "the scenic arrangement") must be "fixed in writing or otherwise." 35 Other countries omit this requirement.36

In general, the foreign laws protecting choreographic works do not refer specifically to those works in enumerating the rights of copyright owners. Presumably the rights accorded to "dramatic works" are deemed to be applicable to choreographic works.

IV. BILLS TO REVISE THE U.S. LAW

In the series of bills introduced in Congress between 1924 and 1940 for general revision of the copyright law, choreographic works were expressly mentioned among the enumerated categories of copyrightable works. All of these bills (being particularly designed with a view to U.S. adherence to the Berne Convention) contained the requirement, with variations in language, that choreographic works be fixed in some form from which they could be acted.

Thus, the Dallinger bill,37 listed:

Choreographic works and pantomimes, the acting form of which is fixed in writing or otherwise.

39

The Perkins,38 Vestal, and Duffy 40 bills and the Sirovich bill of 1936 "1 used the following formula:

41

Choreographic works and pantomimes, the scenic arrangement or acting form of which is fixed in writing or otherwise.

The earlier Sirovich bill of 1932,42 as first introduced listed (in conjunction with dramatic compositions) "written directions for choreographic works and pantomimes"; but this was omitted from the bill as reported out by the House committee, without explanation. The most recent general revision bill, the Thomas (Shotwell) bill,43 included among protected works:

Choreographic works and pantomimes, the scenic arrangement and acting form. of which is fixed in writing."

None of these bills referred specifically to choreographic works in providing for the rights of copyright owners. The rights provided for dramatic works (substantially the same as under the present law) would presumably have applied to choreographic works.

"E.g., in the British Commonwealth countries, Belgium, France, Germany, Italy, Mexico, The Netherlands, Portugal. The United Kingdom Copyright Act, 1956, § 48(1), requires that choreographic works must be "reduced to writing in the form in which the work is to be presented."

36 E.g., Austria and the Scandinavian countries. The proposed new copyright law for Germany, as drafted by the Federal Ministry of Justice, would delete that requirement in the present German law. The Report accompanying the draft says (as translated): "Fixation is undoubtedly of great practical importance for the protection of works of this type [choreographic works and pantomimes], inasmuch as it would be difficult to prove infringement in the absence thereof. However, especially in regard to these works, it would not be fair to make protection dependent upon fixation."

37 H.R. 9137, 68th Cong., 1st Sess. 15(0) (1924).

38 H.R. 11258, 68th Cong., 2d Sess. § 9(p) (1925). 39 H.R. 12549, 71st Cong., 3d Sess. 35(p) (1931).

40 S. 3047, 74th Cong., 1st Sess. § 4(c) (1935).

41 H.R. 11420, 74th Cong., 2d Sess. § 5(m) (1936). 42 H. R. 10976, 72d Cong., 1st Sess. § 3(d) (1932).

43 S. 3043, 76th Cong., 3d Sess. 15(n) (1940).

44 Note the emphasized word "and" where earlier bills had used "or".

Choreographic works were not discussed in the hearings on the several bills.

V. ANALYSIS OF BASIC ISSUES

Original dances that constitute "dramatic compositions," when fixed in some permanent record from which the dance can be performed, are deemed eligible for protection under the present copyright statute. That dances of this character are appropriate subjects of copyright protection does not seem to be questioned. The questions for consideration are whether the concept of "dramatic compositions" is sufficiently broad to encompass the kinds of choreographic works that should be given copyright protection; whether fixation of a choreographic work, in a form adequate to enable performance of the dance therefrom, is a necessary condition of copyright protection; and whether the protection given to "dramatic" works (i.e., the rights of the copyright owner of such works) is appropriate for choreographic works.

A. COPYRIGHTABLE WORKS OF CHOREOGRAPHY

The first inquiry is what kinds of dances should be given copyright protection, and whether these are embraced within the scope of "dramatic compositions." As a fundamental premise, copyright presupposes an original intellectual creation of authorship.

Mention has been made of the distinction between social dances intended to be executed for the personal enjoyment of the participants, and theatrical or dramatic dances intended to be presented by skilled performers for an audience. The former would generally be too simple to qualify as creative works of authorship; they could hardly be considered "dramatic" in any sense; and the most important right with which copyright in choreography would be concerned-the right of public performance-would have no application. Regarding this last point, social dances are intended to be executed by the public, not to be performed for the public as audience. It would be far removed from the basic concepts of copyright to give to a person who devises a new series of steps for a social dance the exclusive right to execute those steps in dancing. Social dances (though they may sometimes be included in the popular conception of the term "choreography") should therefore be excluded from copyright protection as regards their performance; 45 such protection should be confined to theatrical or dramatic dances.46

Nor would every series of dance movements intended for theatrical performance be a proper subject of copyright protection. The bodily movements to be executed by a performer may be so simple or so stereotyped as to have no substantial element of creative authorship. The ordinary "dance routines" performed in variety shows, where any supposed originality would be negligible, may be cited as examples of theatrical dances for which copyright protection would not be warranted.47

45 A narrative or graphic description of a social dance, as in a book designed to teach the dance, might be copyrighted; but the copyright, while affording protection against the reproduction of the description in its narrative or graphic form, would not extend to the execution of the dance.

46 The Austrian copyright statute designates the choreographic works protected as "Theatrical works expressed by gestures or other motions of the body (choreographic and pantomimic works)." Act of April 9, 1936, § 2, par. 2.

47 The observation made in note 45 supra would also apply to a narrative or graphic description of dances of this character.

It may not be feasible to define precisely those dances that are proper subject matter for copyright protection. But this is not unique to choreographic works; the same is true of other categories of copyrightable works, including the general category of "dramatic" works. Perhaps this much can be said in broad terms: that to qualify for copyright protection (as regards performance), a choreographic work should constitute an original creation of dance movements to be performed for an audience, conveying some story, theme, or emotional concept.

Choreographic works of this character are typified by ballets.48 But many "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 the audience.19

This leads to the question whether the category of "dramatic compositions" in the copyright statute is of sufficient scope to embrace the choreographic works that should be afforded copyright protection. One writer, at least, has expressed the fear that "dramatic compositions" may be thought to include only those choreographic works that tell a story." 50 There is little authority on this point, but there is reason to believe that "dramatic compositions" might include choreographic works that depict a theme or emotion other than a "story" in the literal sense of a sequence of events.

51

In Fuller v. Bemis the court held that a dance described by it as "a series of graceful movements, combined with an attractive arrangement of drapery, lights and shadows," conveying "no other idea than that a comely woman is illustrating the poetry of motion in a singularly graceful fashion" was not dramatic. In the course of its opinion the court said: "It is essential to [a dramatic] composition that it should tell some story." But this is followed immediately by the explanation: "The plot may be simple. It may be but the narrative or representation of a single transaction; but it must repeat or mimic some action, speech, emotion, passion, or character, real or imaginary." Thus, the court seems to have used "story" in a broad sense. Later the court characterized the dance in that case as "telling no story, portraying no character, depicting no emotion," thereby intimating that a dance which did any of these things might be considered dramatic.52

In Kalem Co. v. Harper Bros.,53 Justice Holmes said that action alone, as in pantomime, may be dramatic since it "can tell a story, display all the most vivid relations between men, and depict every kind of human emotion."

The Copyright Office Regulations and its Circular No. 5155 indicate that copyright registration may be made for a choreographic

The term "ballets" is used to designate the choreographic works protected in the copyright statutes of Denmark (Law No. 149 of April 26, 1933, §2) and Sweden (Law No. 381 of May 30, 1919, §1).

49 Such dances may be comparable, in this respect, to an "abstract" or "non-representational" painting or sculpture, or to music which is inherently abstract. Cf. Balanchine, Marginal Notes on the Dance, in SORELL, THE DANCE HAS MANY FACES, 38-39 (1951).

so Mirrell, op. cit. note 7 supra, at 804-809. See also WEIL, COPYRIGHT LAW 76-82 (1917) and BALL, LAW OF COPYRIGHT AND LITERARY PROPERTY 82-85 (1944), indicating that a story is an essential element of a dramatic composition.

1 See note 14 supra.

Mirrell, op. cit. note 7 supra, at 808-809, suggests that the court's denial of protection was influenced by the "immoral content" of the particular dance involved, according to the standard of the time (1892). 13 See note 9 supra.

и See note 16 supra.

See p. 96 supra.

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