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Choreographic works have been expressly copyrightable under the
Federal Copyright Law in the United States for sixteen years.
Although many choreographers have registered their works, only
one infringement case has reached the Federal courts. Numerous
legal commentators have analyzed the new copyright protections,
but many questions remain unanswered for the dance community.
This article provides an overview of this legal history in terms
understandable to non-lawyers. It also identifies and discusses
the many philosophical issues presented by the copyright of choreographic
works. These issues include the definition of "choreographic
work," the nature of "originality," the distinction
between "expression" and "idea," the requirement
of "fixation in a tangible medium," infringement, derivative
works, and the role of expert testimony.
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Choreographic works have been expressly copyrightable since January 1, 1978, the effective date of the Federal Copyright Law of 1976. (1) Previously, some choreographic works had been eligible for copyright, but only under the category of dramatic and dramatico-musical works. (2)
Although numerous choreographers have registered their copyrights in the past fifteen years under the new Copyright Law, (3) to date only one case for the infringement of a copyrighted choreographic work has reached the Federal courts. In this 1986 decision, Horgan v. MacMillan, Inc., (4) the U.S. Court of Appeals for the Second Circuit analyzed, for the first time, several key issues regarding the copyright of choreographic works. As the Court noted, "Explicit federal copyright protection for choreography is a fairly recent development, and the scope of that protection is an uncharted area of the law." (5)
In Horgan v. MacMillan, Barbara Horgan, as executrix of the estate of George Balanchine, (6) brought an action against MacMillan publishers for infringement of the copyright on Balanchine's Nutcracker. Horgan sought a preliminary injunction to stop publication of a book that MacMillan was about to publish containing photographs of Balanchine's Nutcracker. (7) . The U.S. District court denied the injunction on the grounds that the photographs did not infringe the copyrighted choreography. (8) Horgan appealed this decision to the U.S. Court of Appeals for the Second Circuit. The Appeals Court held that the lower court had used the wrong test for infringement, reversed the decision, and remanded (sent back) the case to the lower court for further proceedings, using the correct infringement test. At that point, the parties settled out of court. (9) Even so, the decision of the Appeals Court, a case of "first impression," provides important guidance on legal principles for the infringement of copyrighted choreographic works.
The Horgan decision, as well as the Copyright Law of 1976,
has been scrutinized by many legal scholars from a strictly legal
perspective. Many publications for lay readers have summarized
the provisions of the law, especially the requirements for registering
a copyright. My purpose here is to review this fifteen-year history
from the perspective of dance scholarship. I am interested especially
in precedents set in the Horgan decision /p. 60
which are of importance for the community of dance scholars. I
am also interested here in issues not resolved by this
case. I will suggest important roles for the community of dance
scholars in addressing these issues, especially in their capacity
as expert witnesses in future cases.
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A. Defining "Choreographic Work"
"Choreographic work" is not defined in the 1976 statute, although the legislative history offers some minimal guidance. The House and Senate Reports use identical language to say that the term is one of several with "fairly settled meanings," and that it is not "necessary to specify that 'choreographic works' do not include social dance steps and simple routines." (10) The House Report alone refers to the Act's "explicit recognition of all forms of choreography." (11)
The precise meaning of "choreographic works" is not clear, however, from prior statutes or case law. Nor is there any evidence that Congress intended to limit "choreographic works" to those which were protected previously under the category of dramatico-musical work. (12) Indeed, the creation of the new category of "choreographic works" in the copyright law suggests that Congress intended to create a broader class of protection. (13) Clearly, Congress intended that the Copyright Act provide categories eligible for protection with "sufficient flexibility to free the courts from rigid or outmoded concepts of the scope of particular categories." (14)
In the absence of further guidance from the statute or case law, the meaning of "choreographic work" must be developed from common usage. The definition of dance has received extensive consideration by dance theorists, historians, and philosophers.(15) The American Heritage Dictionary defines choreography as "1. the art of creating and arranging ballets or dances. 2. The art and technique of dance notation. 3. The art of dancing."(16) As 2) suggests a technique or procedure and 3) a performing skill, only 1) remains as an example of authorship, as required by the statute. (17) Consistent with this conclusion the Concise Oxford Dictionary of Ballet says that "choreography is used today to describe the art of composing a dance or a b[allet]." (18) The obvious problem is thus the meaning of "dance" or "ballet."
Human movement would seem to be the central element of dance, but it is at least arguable that even this requirement is too narrow. In Duet, Paul Taylor and his partner do nothing but sit on stage, in silence, for three minutes. (19) In 1942, George Balanchine choreographed Circus Polka to music by Stravinsky "for 50 elephants and 50 beautiful girls" for the Barnum and Bailey Circus. (20) Another problem with focusing solely on human movement is that it is also central in gymnastic routines (21) and figure skat- /p. 61 ing routines, (22) which arguably might be subject to protection as "choreographic works." An issue for dance scholars is where to draw the line between choreographic movement and other movement. Are there some movement designs which should not be protected by this copyright provision? On what grounds? (23)
Obviously, "dance" should not be defined in terms of a particular dance school or "vocabulary," such as "classical ballet." Nor should "dance" be limited to works designed to be performed to the accompaniment of music, as that would exclude many contemporary works performed in silence. (24) Nor should "dance" be defined in terms of any particular value judgment, such as grace, elegance, or beauty, as that would confuse the specification of a category of works with its evaluation. (25) Nor should there be a requirement that dance tell a story or express human emotions, as that would exclude many contemporary works generally agreed to be choreographic (26) and would limit choreographic works to those previously eligible for registration as dramatico-musical works.
Some legal theorists have expressed alarm that "choreographic work" has not been defined with specificity by Congress, (27) but this concern is misguided. If Congress were to stipulate a narrow, precise definition in the legislation, according to today's understanding of dance, it would restrict future choreographers from copyright protection for developments in dance that cannot be foreseen today. I would urge that the better approach is to allow the definition of "dance" to evolve through the ongoing dialogue of the dance world and the courts to whom these issues are brought over time. Dance critics, theorists, philosophers, and historians play a continuing role in this dialogue as we broaden and improve our understanding of "dance". Imposing a narrow codification in the Copyright Law would curtail this process unnecessarily.
Martha Traylor, another legal commentator, has suggesting understanding dance as "planned movement, set into a time frame, for the benefit and enjoyment of the passive observer." (28) She notes that this broad definition of dance would provide statutory copyright protection for everything from circus productions and stage movements of actors to figure skating. (29) But this is not necessarily an undesirable result. Twyla Tharp, for example, has choreographed for ice skaters and, presumably, she would want legal protection for her work. As we have almost no case law on this issue, I would urge an intermediary approach, namely, a presumption of such broad inclusiveness in our understanding of "choreographic work," with experts from the dance community providing guidance in specific cases.
Another issue in defining "dance" is whether or not it should include a requirement of "presentation to an audience." (30) This requirement excludes purely social and recreational dances, which is /p. 62 consistent with Congressional intent. Such a requirement also limits protected works to those broadly understood as "art" or "theater" dance. But what counts as an "audience"? It should be sufficient if a work is created with the intention of being performed for an audience. Exigencies of all sorts might prevent the actual performance of a notated and registered choreographic work. Those exigencies should not be allowed to prevent protection of a work which meets all other requirements for copyright protection.
The Horgan decision sheds some light on how to define "choreographic work" under the new Copyright Law. The District Court had said that choreography "is the flow of steps" in the dance. (31) MacMillan publishers had argued in this case "that the central characteristic of choreography is 'movement.'" (32) Although the Court of Appeals disagreed with the District Court in the standard of infringement to be applied (discussed below), it did not disagree with the view that "the flow of steps" or the "movement" is the central characteristic of a choreographic work protected under the Copyright Law.
The Court of Appeals also cited with approval definitions which had been published by the Copyright Office. If those definitions had been clearly inconsistent with the statute or the intent of Congress, the Court could have rejected those published definitions, but it did not. Among other things, the Copyright Office definitions emphasize the central role of "dance movements and patterns." (33) Although these are "usually intended to be accompanied by music," such accompaniment is not required in all circumstances. (34) (The music, of course, could be separately copyrighted under the appropriate category, as could costumes and sets.) Nor must the choreographic works "tell a story." (35)
I would suggest, in conclusion, that any work submitted as a "choreographic
work" prima facie should be considered as such if
it centrally involves the design of human movement and meets other
requirements for copyright protection, in the absence of persuasive
argument that it lies beyond all reasonable usage of the term
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The Copyright Law requires that a work be an "original work of authorship" (36) in order to be eligible for copyright protection. The classic test of originality for all works is not novelty, but "whether the production is the result of independent labor." (37) Simply because a choreographer has been influenced by predecessors (as common in dance as in other art forms) does not preclude sufficient originality for copyright protection. (38) A report prepared for Congress in 1961 in anticipation of the Copyright Law revision suggested that choreographic works would be lacking in sufficient /p. 63 originality if the movements are "so simple or so stereotyped as to have no substantial element of creative authorship." (39)
Case law provides very little guidance regarding the precise nature of originality in the design of choreography, although analogies can be drawn from other art forms. (40) One interesting test proposed by a court over 100 years ago, which would be applicable to choreography, is whether critics and competitors have previously questioned the originality of an operetta presented publicly hundreds of times. In the absence of such questioning, a heavy burden of disproving originality falls on the challenger. (41) With such a test, the dialogue of the dance community is again recognized as important to the legal system as it develops guidelines for copyright protection.
The issues presented by "originality" can be addressed usefully in terms of the elements of many typical dance performances:
(1) basic "steps," from either established or newly-created movement vocabularies, which are
(2) combined in sequences of several steps, (3) for one or more dancers,
(4) in a performing area,
(5) to the accompaniment of music,
(6) for the purpose of telling a story and/or communicating or expressing human emotions or feelings,
(7) with the aid of mime, costumes, scenery, and lighting.
I do not intend to suggest that works must include all of these elements to be a "choreographic work." Clearly many do not, such as "formalist" works. These elements are present in many works, however, and provide one approach to analyzing what "originality" might mean in this context. Thus, I am not suggesting that these are necessary and sufficient conditions of dance, but rather "strands of similarity" or "family resemblances."
(1) Isolated "steps" from an established movement vocabulary are obviously not "original." Newly-created steps, in isolation from any particular sequence, might be "original," but are probably ineligible for protection, as they constitute "ideas," "systems," or "methods of operations" excluded from protection. (42) The Horgan court cites approvingly publications from the Copyright Office that "social dance steps, folk dance steps, and individual ballet steps" are for choreographers as words are for writers, and, in and of themselves, cannot be copyrighted. (43) At least one legal commentator has questioned this limit, on the grounds that "some . . . dance steps are sufficiently original to be protected." (44) But this is a naive extension of a long-established principle in copyright law. If a writer could /p. 64 copyright a newly coined word or a musician copyright a new atonal scale or chord, the dialogue and the means for creativity in these arts would be severely restricted, to the detriment of the society.
(2) It would seem possible, at least, that combinations of steps could be original, just as could combinations of words, for which there is strong support from decisions involving literary works. Whether or not the elements are original, the combination could be "new and novel." (45) Combinations of dance steps also would seem analogous to a distinctive melody in music, for which there is considerable precedent for meeting the requirement of "originality." (46) However, many combinations clearly belong to the public (e.g., a series of turns a la seconde followed by multiple pirouettes, common in so many male solo variations in ballet), and some skeptics wonder whether any combinations could meet the statutory requirement of originality (namely, that only "original works of authorship" are eligible for copyright). (47)
The Balanchine case presents a special problem, as the work allegedly was infringed by a book of still photographs. The Court of Appeals placed great significance on what can be captured in a single photograph, including "a gesture, [or] the composition of dancers' bodies." (48) Yet the context of this discussion suggests that these elements are significant because the typical observer can "perceive even more" from a single photograph. For example, in a photograph of a dancer jumping through a hoop in the "Sugar Canes," the Court notes,
The viewer understands instinctively, based simply on the laws of gravity, that the Sugar Canes jumped up from the floor only a moment earlier, and came down shortly after the photographed moment. (49)
Thus, despite the reference to a single gesture, the Court seems to find originality in a sequence of steps. The Court of Appeals specifically rejects the claim of the District Court that a single photograph is analogous to "a single chord of a Beethoven symphony." (50) A single chord would be more like the single step or pose in (1) above and would not constitute sufficient originality to meet the requirement for copyright protection.
(3) Choreography for more than one person also presents possibilities for originality. An ensemble, for example, might perform the same combination of steps (perhaps not original in themselves, or in combination), but at different times, to create a striking and, arguably, original visual pattern of movement. Analysis of a movement design should not focus only on each dancer in isolation, any more than a symphonic musical work should be considered only one instrument at a time.
The Horgan court seems to provide for this possibility for originality when it says "the placement of dancers on the stage" is among the things that may be among the important things communicated in a single photograph, (51) and thus which could provide the basis for originality.
(4) The choice of performing space might be original and an integral /p. 65 part of the work. If a choreographic work involves the design of movement, the choice of location for that movement seems to be part of the design. For example, the use of ramps running across the audience or the steps leading to a public monument could be considered an original element in the design of the work. However, mere use of the performing space itself probably would be excluded from protection as a "procedure," although the pattern of movement combined with the design for the space could be protected as original.
(5) The music used to accompany dance movements is eligible for copyright under a different category. (52) However, the choice of a particular musical accompaniment for a certain combination of steps might be considered an original element of a choreographic design. To take an absurd example, performing the Black Swan pas de deux from Swan Lake to a Sousa march instead of the traditional Tchaikovsky score might be not only original, but historically novel. However, it is not clear whether this choice would be generally recognized in the meaning of "choreographic work." (This issue did not arise in the Balanchine case, as the Tchaikovsky score is in the public domain and Balanchine did not make any particularly novel use of the score.)
(6) The plot or story and the emotions or feelings expressed by a work probably would not ordinarily meet the requirements of originality. Because of the absence of words, the dramatic element in dance, of necessity, is so generalized as to be excluded from protection. Further, plots in themselves, apart from the movement, might not be considered part of a "choreographic work." Agnes de Mille has rejected the view that originality in a choreographic work could ever be contributed by the story, because of her insistence that choreography "is a separate art" from drama or story-telling. "Originality consists in the arrangement of steps and gestures in patterns; the story may or may not be unique." (53) Works with a distinctly original plot (e.g., avant-garde works using spoken dialogue or new "story-ballets" (54)) might still be eligible for registration as dramatico-musical works, (55) to ensure that protection is obtained for the dramatic element, as well as the design of the movement.
As noted earlier, the Horgan court cited approvingly language from the Copyright Office that "Choreographic works need not tell a story in order to be protected by copyright." (56) Although The Nutcracker does tell a story, Balanchine had not claimed any copyright protection of that story, which had been developed by others and was in the public domain.
(7) The costumes, scenery, and lighting probably would be eligible for protection as "pictorial, graphic, and sculptural works." (57) As with the choice of music, the choice of certain costumes for use with certain movements might be historically novel, (e.g., performing the Dying Swan in a scarlet unitard), but would not clearly be part of a choreographic work in /p. 66 the sense of movement design. In a 1903 decision concerning a stage spectacle, protection was denied to "the setting or production . . . on a stage with drop curtains, screens, and lights turned up or down, for all this is old, and common property." (58) But this language suggests that it remains at least possible that such production elements could be new and uncommon.
The Horgan court supported the idea that the choreography could be copyrighted and subject to infringement, separately from these visual elements of costumes and scenery. MacMillan had argued that these elements were "visually indistinguishable from the integrated whole of the production." (59) The Court of Appeals did not rule on this issue, saying instead that this should be determined in the remand in the lower court, with the aid of experts. But significantly, the court thus did not rule out the possibility that the choreography could be separately identified and protected. In taking this approach, it rejected MacMillan's argument that these elements could not be separated from the "integrated whole of the production." (60)
Alwin Nikolais reportedly took precautions in registering his
works to preserve this distinction between choreography and the
visual elements of costumes and lighting by making two separate
videotapes for copyright registration. One videotape was made
of the complete production, while a second was made of the "bare"
choreography without the visual elements. (61) The Horgan
decision suggests the wisdom of this approach.
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C. Expression vs. Idea
Another problem which remains difficult under the 1976 Copyright Law is application of the distinction between "expression"and "idea" to the category of "choreographic works." Protection is excluded by the statute 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. (62)
The legislative history makes clear that the provision is intended to codify, without change, the previously recognized "dichotomy between expression and idea." (63) Both the House and the Senate Reports characterize the things excluded as "intellectual concepts." (64)
We can imagine concepts or ideas which obviously would be excluded from protection, such as "exploration of the emotion of grief," "stylization of a wedding ceremony with one couple and a corps de ballet," "examination of good and evil through an allegory involving swans," and "abstract, angular movements to embody music by Stravinsky."
Not subject to the exclusion would be non-verbal "ideas," in the sense sometimes used by writers on dance that movement itself is "the message," /p. 67 or idea. Lincoln Kirstein has said, for example, "Increasingly, ballets fail to tell stories. They are about the dance itself, just as symphonic music is about sound." (65) Such movement patterns, if they meet other requirements for copyrightability, should have protection, as this non-verbal sense of "idea" does not seem to be the intent of Congress. The decisive test for an excluded "idea" would seem to be whether it could be described verbally in conceptual, as opposed to strictly descriptive, terms.
Another obvious exclusion, as a "procedure" or system,"
would be any element of a standard dance vocabulary, such as a
plie or a pirouette. (66) Less obvious, but almost certainly also
excluded, would be the development of a strikingly novel step
(such as the split tour jete made famous by Mikhail Baryshnikov
or Maya Plisetskaya's kick-jete, stabbing the air with one leg
and bringing her head back to her other foot (67) ) or novel movement
vocabularies (such as that of Martha Graham). These would be excluded
for the same reason that a new atonal musical scale or a new genre,
such as jazz music, would be excluded. (68) Since many "steps"
actually involve several "building blocks" (e.g., preparation-turn-landing),
the primary problem here is drawing a distinction between a new
step, excluded from protection, and an original combination of
steps, probably eligible for protection as part of a complete
choreographic work. Dance critics and historians will play a vital
role in sorting out these subtle distinctions.
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D. Fixation in a Tangible Medium: Videotape or Notation?
To be eligible for protection, works must be "fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (69)
Two copies of this fixation must be deposited with the Copyright Office when the copyright is registered. The legislative history emphasizes the flexibility available in the choice of medium,
to avoid the artificial and largely unjustifiable distinctions . . . under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed. (70)
Choreographic works may be fixed through film, videotape, or any of several notational systems, (71) although they are often prohibitively expensive. (72) One legal commentator has argued that "home movie-type film" should be acceptable, with persons familiar with the production allowed to testify to elements of the choreography which might not be captured on such film. (73) (Today, of course, home video also would be a cheap method of fixation for these purposes.) Another legal commentator sug- /p. 68 gested that a detailed verbal description of a work might be acceptable as a notation, if the work could be reconstructed from such a description. (74) The choice of medium could have significant ramifications in an infringement action involving choreographic works.
Notably, fixation through film or videotape records every element of one, but only one, performance, including the interpretation of particular dancers. The result is a copyrighted work more detailed in some respects than written notation would provide, but problems result. Agnes de Mille has noted that films for copyright registration purposes "make clear style and dynamics." (75) But John Martin, long-time dance critic for The New York Times, found films unacceptable for that very reason. He said a film is a recording, not of the composition itself, but of a specific performance of it, which is inevitably an interpretation (sometimes even an adaptation because of the limitation of the individual performers) and consequently may depart radically from the choreographer's . . . intent. (76)
The interpretations of individual performers have traditionally been excluded from protection, (77) although some courts apparently have included these interpretations in the protected work, especially if they have been recorded in some way. (78) It thus could be argued that all interpretive aspects of a performance fixed on film or videotape are protected. If such interpretive elements are not included in the protected work, it would be almost impossible to identify which aspects are part of the choreographic work and which are the interpretive contributions of the performers. (79) Many interpretive elements could conceivably be the work of either the performer or the choreographer (e.g., a certain turn of the head or facial expression or phrasing of the steps). Another problem is whether the choreographer should be considered the "author" of those interpretive elements recorded on film, but contributed by the performer. For simplicity, perhaps there should be a presumption that the choreographer has contributed all protected elements of the work, including "interpretive" elements, with the burden on a challenger to show otherwise. It also might be argued that the dancers and the choreographer should be considered joint authors. But this would be inconsistent with apparent understanding in the dance community, as well as with practices of choreographers in registering their copyrights.
It is not clear what constitutes the choreographic work protected by copyright when there are discrepancies between a visual recording and written notation, and when a work is fixed in both forms, especially when both fixations have been deposited with the Copyright Office. Should the protected work consist only of those elements shared by both forms of fixation? Should the film be seen as a supplement to the more skeletal written notation? or vice versa? The distinctive elements captured only on film might be precisely the characteristics best showing substantial simi- /p. 69 larity or originality in an infringement suit. On the other hand, it could be argued that the discrepancies constitute, prima facie, the interpretive and unprotected elements of the work. Another problem is that film, especially of large groups, cannot capture all the movement designs, as some dancers will be blocked by others visually. (80) Ironically, therefore, film or videotape is less detailed than notation in these respects.
Another issue is determination of which version of a work counts as "the work" when there have been many revisions. The Copyright Law provides that "each version constitutes a separate work," so long as it has been fixed. For works "prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time." (81) One result is that we could seem to have different works in a legal context even when the dance community recognizes something as one work.
Balanchine elected to deposit a videotape of a dress rehearsal of the Nutcracker. (82) The Horgan court did not raise the problems just noted of distinguishing the choreographer's movement design (the subject of the copyright) from mistakes in that particular performance and from individual interpretations by the dancers. We can speculate that the court saw the copyrighted movement as including a range of permissible interpretations, all of which would count as the protected choreography. The court also might have been silent in the expectation that expert testimony at a later hearing (which never happened) would address these issues. (Obviously, as we do not have a situation in which both videotape and notation were deposited, the court did not need to address the problem of determining which is the protected work when there is variation between the two. This could be a troublesome issue in later cases.)
Another problem presented by the deposit of a videotape is addressed by the Horgan court. The videotape shows not only the choreography, but also the costumes and set, in which Balanchine made no claim of ownership. But the court did not rule on the issues presented, suggesting that
the degree to which the choreography would be distinguishable in the photographs without the costumes and sets . . . are all matters still to be determined, preferably on a fuller record including expert testimony. (83)
This leaves open the possibility that the choreography technically might be distinguishable in some way, yet not be sufficiently different to be distinguishable by the ordinary observers on the jury. Implicitly, the court rejects the view that any difference whatsoever in choreography shows there has been no infringement. (84)
The Horgan court did dispose of one important matter concerning the nature of fixation, when it noted that "recreation of the original from the [photographs] . . . is unlikely if not impossible." (85) Although the court said this in its discussion of the test of infringement, it seems reasonable to /p. 70 draw the additional conclusion that still photographs thus would not be sufficient as a form of fixation, as one cannot recreate the work in its entirety from these still photographs.
Another issue concerning fixation (although not addressed by the Horgan court) is whether common law protection would be available under state law for those aspects of works which are not fixed. (86) The 1976 Law explicitly provided that common law protection would remain available to works not covered by the new Federal statute, including works "not fixed in any tangible medium of expression." (87) If a work is revised considerably by the choreographer from the fixed copy, should the revisions, if unfixed, constitute a new work? Kirstein, among others, has noted the frequency of this practice of continuing revision of ballets:
a ballet, or choreographic composition is very often altered from season to season, sometimes radically, and although the name remains the same, the choreographer will utilize changes in the cast, new dancers to their advantage. (88)
One legal commentator, Leslie Erin Wallis, has argued that the requirement for fixation is unreasonable for choreography, principally because it does not recognize the ways in which choreographers actually work. Choreographers, she notes, "typically create their works on the dance floor by directing the movements of their dancers." (89) Few choreographers or dancers read or write notation, as she observes, and it is certainly true that notation, film, and video all cost money. But it is difficult to see how she reaches her conclusion that the fixation requirement in the Copyright Law "hinders creation and protection of choreographic works because of the unique manner in which dance works are created and preserved." (90) Protection is complicated, to be sure, but creation can continue as it always has. The Copyright Law requires only fixation of the work. It does not require that the choreographer make the fixation nor that the fixation be made simultaneously with the creation.
As an alternative to the fixation requirement, Wallis urges that the United States adopt the approach of German copyright law, in which protection begins at the moment of creation of the work, prior to any fixation. (91) But Wallis herself acknowledges in passing an enormous problem with this approach, namely, how to prove the actual identity of the work in an infringement action. (92) Wallis glosses over this enormous problem. If the work only exists in the memories of the dancers, the choreographer, audience members, critics, and so on, how reliable would those memories be in an infringement action, especially many years after the original performances? Dance history is full of examples of works no longer remembered by dancers who performed in them years ago. If there is no fixation in notation, videotape, or film, how could a choreographer hope to prove infringement by another production? Wallis cites not a sin- /p. 71 gle case from Germany where a successful infringement action was brought for a work which had never been fixed in some way. Wallis concludes her article by coming full circle and suggesting that perhaps some sort of fixation requirement should be maintained for copyright registration, to assist in future infringement actions. She rejects notation, film, and videotape, but gives not a clue as to what alternative fixations she has in mind! (93)
Choreographers in the United States do have some protection under common law for works prior to fixation and registration with the Copyright Office. (94) This protection suffers from the same problems as the approach of German copyright law, namely, that it would be difficult to prove what the work actually is when the choreographer got to court. Commentator Gary D. Ordway suggests that the lack of fixation is the principal reason so few attempts have been made to protect copyright through the common law. (95) With regard to the need for fixation generally, Ordway says flatly: "in the absence of some tangible record of the original dance movements it would be practically impossible to determine if the dance were being pirated." (96) But if this is a problem for existing common law protection, it would seem to be no less a problem for statutory copyright protection, contrary to Wallis' proposal.
Legal commentator Joseph Taubman accepts this common law protection as a continuing necessity in view of practices within the dance community. (97) However, Wallis rejects common law protection because it varies from state to state and thus the protection for choreography would be unpredictable. (98) In an area of law where there is precious little precedent, courts typically look to other states and indeed to decisions from England, which provide some unifying elements in their reasoning. The real unpredictability seems instead to result from the problems of proving the existence and identity of the work in the absence of fixation.
Wallis also argues against the necessity of fixation in the Federal copyright law on the grounds that it is not needed for preservation of dances. She acknowledges that a few works have been lost, giving the example of Nijinsky's Sacre du Printemps. But she insists that "a great number have been preserved and performed frequently," citing the example of Swan Lake. (99) Her confidence in the oral tradition of dancers performing dances and passing them along to later generations seems naive and misguided. How different would be the history of twentieth-century dance if we today had access to notations or films of all the works created in this century alone!
Another legal commentator, Martha Traylor, also urges some form of protection for choreographers from the moment of creation until the recordation or fixation of the work, but she does not specify a solution either through common law or revisions to the Copyright Law. (100) Traylor noted /p. 72 many of the same problems as Wallis (including the expense of notation, film, and video and the practice in the dance community of transmitting works from generation to generation of dancer). (101) She seems to agree with Wallis that "setting" a dance onto the bodies of dancers should be considered a "writing" sufficient to constitute a fixation in a tangible medium. Although not as explicitly as Wallis, she also seems to urge a revision of the Copyright Law to accommodate this practice in the dance community. (102) These factors mean "there is little confidence that the new Act . . . can or will be utilized to protect choreographic works." (103) She hopes that interpretation by the Copyright Office and the courts over the years will take these factors into account. (104) But she also acknowledges the important, indeed necessary, role of notation or other recordation in an infringement action. (105) Unlike Wallis, Traylor also notes the important role of recordations of choreography for dance history and also for reconstructions of works forgotten by the dancers who once performed them. (106)
As the Horgan court notes, much remains unsettled. "Experts"
(discussed below) will have an important role in sorting out these
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E. Infringement: Substantial Similarity
Infringement of a copyrighted choreographic work most frequently would be a violation of the exclusive right "to perform the copyrighted work publicly" (107) or, as with films of the work, the right "to display the copyrighted work publicly." (108) The required showing of "substantial similarity" is made by comparing the allegedly infringing performance (or film) with the protected work. Even though the degree of similarity required varies according to proof of access, (109) the very notion of "similarity," regardless of degree, is problematic for choreographic works. What counts as "substantial similarity" and who makes that determination?
The extreme cases are easy. Substantial similarity would be shown easily in performances consisting of (1) the identical movements by the same ensemble of dancers as provided in the fixation of the protected work, or (2) the identical movements by the same ensemble of one or more discrete sections, movements, or "variations," as fixed in the notation or other medium.
At the other extreme, a performance would not constitute an infringement if it bore no discernible similarity, other than the use of some of the same standardized steps, and not in any noticeably similar sequence (e.g., a performance whose only similarity with a protected work was the use of frequent fouettes and pirouettes, but not in the same sequence or combi- /p. 73 nation). The vast middle ground between these extremes is problematic. Case law involving theatrical spectacles or pantomime provides little guidance, primarily the test of similarity in plot and characters. For example, the spectacle Black Rook was considered to be "a mere colorable imitation" of the Black Crook in a court case in 1867. (110) Only "slight alterations in the dialogues and incidents" were made, and despite minor technical differences, "the result is so nearly the same as to produce the impression that they are identical." (111) Even so, this court denied relief on the grounds that the spectacle was immoral and that it was not the intent of Congress to protect immorality under the Copyright laws. In another nineteenth century case, relief was also denied on moral grounds for another stage spectacular involving kinetoscopic images and quick costumes changes, even though "the general plan or plot . . . is substantially the same." (112) Substantial similarity in literary works also rests primarily on detailed plot situations and characters. (113) However, as a choreographic work need not contain any dramatic situation, similarity cannot be primarily a function of these elements. Even when choreographic works do include a plot or dramatic element, it is not normally the central or distinctive characteristic of the work. Analogies with substantial similarity in musical works probably are more appropriate, (114) although no less complicated. (115)
Given the diversity in contemporary dance, it is unlikely that any simple test of similarity will (or should) be developed. It is at least clear that use of different music than that provided on the fixation (if any) would not alter the degree of similarity of the movements themselves. Although music is an important element of most performances, the notion of "choreographic work" does not seem to include the music. Changes of scenery, costuming, or lighting also should be irrelevant in infringement of a choreographic work, as such changes would amount to insignificant alterations which could be exploited by pirates to evade copyright. (116) With human movement only now clearly central in the new category of choreographic works, a basic understanding of substantial similarity between movement designs has yet to be developed.
The Horgan v. MacMillan decision includes considerable discussion of the basic issue of what counts as infringement with regard to choreographic works. The court cites approvingly a classic statement of infringement from 1960:
whether "the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same." (117)
Note that the "ordinary observers" are the final arbiters. They may be assisted in their observances by expert testimony, but ultimately what counts is this "aesthetic appeal" to the observer. (118)
We also gain new insights from the Horgan decision as to what would count as "substantial." It "is not a defense to infringement," the court said, "that the original production cannot be recreated from the allegedly in- /p. 74 fringing copy." (119) In other words, the infringing work need not be so specific and detailed that we could use it, in effect, as a score. "Substantial" means something less.
The court stresses that even if the "amount" of infringing material is "small," it would still count as infringement if "it is qualitatively significant." (120) With this decision, we realize just how "small" that might be! A photograph, the court says, need not show a "flow of steps." A pose alone might be sufficient, if "qualitatively significant." With still photographs, "a single moment in a dance sequence may communicate a great deal." (121) It might, for example, "convey to the viewer's imagination the moments before and after the split second recorded." (122) With these observations, the court has accepted a very narrow notion of what would count as "qualitatively significant." If a photograph could be infringing, so, we might speculate, might a still pose in a live performance, although the court does not expressly make that observation. Thus, even if we believe generally that dance is about movement and a "flow of steps," such movement is not required for an infringement. This is an important precedent for future infringement cases.
Another fact in this case has potential significance in the jury's assessment of substantial similarity, although the court does not expressly make this observation. The book of photographs which allegedly infringed Balanchine's copyright included three photographs of "Balanchine directing a rehearsal of the ballet." (123) The significance of this has been overlooked. A requirement of copyright is that it be an "original work of authorship." (124) Precisely what counts as "original" is a complicated question, but, among other things, it suggests that the work originated with the author/choreographer -- as opposed to a work which was copied. The photographs of the choreographer in the allegedly infringing work imply that the book originated with Balanchine too, thus underscoring the claim of Balanchine's estate that the work had been passed off as a Balanchine "original."
Obviously much remains to be sorted out, not only by courts, but also by dance scholars. In recent decades, there has been some attention by philosophers of art to the "identity" of a choreographic work of art: exactly what is it about a work that makes it the "same" as another? (125) This is precisely the issue of infringement. Is it compliance with a written score? How much deviation from the score can be tolerated before it ceases to be an instance of that work? Should identity in dance be established in the way we identify unique art works, such as paintings and sculpture?
I would suggest a drastically different approach, both in the dance community and in the special context of copyright infringement. The identity of a work (and whether it is "substantially similar") should be considered a matter of an agreement by the community. In dance generally that community /p. 75 includes the choreographers, performers, audience, critics, historians, and so forth. Their dialogue as to what counts as a work is carried on in conversations, formal and informal, oral and written. The practices of this dance community define what counts as the "same" work. (As one commentator has suggested, this community and its unwritten "rules" concerning respect for not stealing each other's works perhaps explains why so few infringement suits have been brought in the courts since passage of the Copyright Law some fifteen years ago. (126))
>Within the specific context of copyright infringement, the jury acts as representatives of the viewing public, one important segment of the "community" of dance. In the courtroom, the community consists of diverse experts, of choreographers (both the original choreographer and the alleged infringer), the performers, and the jury/audience. This community agreement constitutes the "identity" of the two works in question in the courtroom, just as it does outside of it.
This jury is different from the typical dance audience, which
attends many performances, reads certain critics regularly, and
relishes its participation in the audience of this art form. Juries
are selected from the community at large. So the role of expert
witnesses becomes quite important, as they provide a compressed
dialogue with this special "audience," consisting of
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F. Derivative Works: Use of Pre-existing Material
A special problem in the Horgan case is the use by Balanchine of preexisting choreography by Lev Ivanov from the nineteenth-century production of the ballet. (127) The Balanchine copyright registration did not mention this use, which might have invalidated the copyright, although the court said more factual evidence was necessary before this could be decided. (128) It is sometimes permissible to use preexisting material. If that material is itself copyrighted, permission from the copyright holder must be obtained. If, as here, the preexisting material is in the public domain, the choreographer may use it without permission, but use of that material must be acknowledged in the copyright registration to distinguish the original contributions.
It is still possible for Balanchine's version to meet the requirement
of "originality" for his own copyright, but the court
suggests that it depends on "the amount of original Balanchine
choreography (rather than Ivanov's)." (129) It is a peculiar
choice of terms for the court to talk of "amounts,"
as the court does not suggest anywhere that it literally means
counting up measures or steps or movement patterns. Instead, the
court suggests, once again, that we need a ". . . fuller
record including expert testimony, which we assume would be of
considerable assistance." (130) But at /p. 76 this
point we have no other guidance as to what would count as a sufficient
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G. Evidence and Fact-Finders
The "ordinary observer" test for similarity, the rule in other categories of copyright (132), is not unproblematic with respect to choreographic works. Although dance gained rapidly in popularity in this country in the past two decades, dance audiences still represent a small minority of the general public. Given the complete unfamiliarity of so many with this art form, it could be argued that only those who know "how to look" at dance should decide infringement. (133) In other words, perhaps juries should be limited to those who have some experience as audience members of dance performances. Comparing two dances could be like comparing poems in two unknown foreign languages for persons who did not have some familiarity with the art form of dance.
Courts have considered it proper to exclude from juries in infringement actions those persons unable to perceive differences in the works in question. For example, it would be proper to exclude the tone-deaf from juries in music infringement. (134) Similarly, a case involving infringement of an English drama based on a French novel was withdrawn from the jury as the jurors were not thought capable of making satisfactory comparisons of the three plays and the novel involved. (135)
The use of expert testimony in other art forms suggests areas where it would be admissible in choreographic infringement cases. Expert testimony would be relevant for "dissection and analysis" of the infringing passages to determine originality, (1360 which is not left to the "lay observer" test. Expert testimony would also be relevant for determination that the work was a "choreographic work," and thus subject to protection. (137) Traylor has urged that expert testimony be considered to assist the fact-finders in determining infringement. (138) Experts could point out subtleties in movement design and rhythm which might not be noticed by the typical jury member. Professionals might be allowed to demonstrate movement differences as part of their testimony as experts. Experts could also help sort out the identity of the protected work when there are discrepancies between a film or video and a notated score, as there almost certainly would be. (139) Another commentator noted that children have been considered as average observers in other cases and thus that their assessment as "experts" might be relevant in a case involving a book of photographs directed at children, as in the Balanchine case. (140)
There is also some question as to the actual performances to be compared in determining infringement. If a written notation were deposited /p. 77 for the copyrighted work, a performance would have to be reconstructed from the notation for the court, as so few people can read such notations,. Experts would be needed to reconstruct the work and to testify as to the compliance with the notation. Legal commentator Melanie Cook has also noted the necessity of expert testimony, as judges and juries almost certainly would be unable to read Labanotation. (141) Further, especially if an ordinary lay jury were to make the final determination, it could be argued that the two performances should be given with identical costumes, stage set, and music, at least for choreography which bears some obvious degree of similarity. (142) Even if all such elements are not protected by copyright, they affect the overall perceptual impact of the aspects of the work which are protected.
The Horgan court suggests several issues which would be aided by "expert testimony." This testimony would aid the triers of fact (normally, the jury) in determining, as noted earlier,
the amount of original Balanchine choreography . . . and the degree to which the choreography would be distinguishable in the photographs without the costumes and sets. (143)
Nowhere does the court suggest who these experts might be. The Federal Rules of Evidence, which would apply in these federal copyright cases, takes a very expansive notion of who counts as an "expert" to include those qualified "by knowledge, skill, experience, training, or education" to provide "scientific, technical, or other specialized knowledge."(144) I would suggest that the dance community itself needs to define who would count as an expert in future cases, and the expertise and evidence they should bring into this special legal context. What dialogue should they encourage in the special dance-legal community with other witnesses and the jury/audience?The historian who could identify sources of material by Ivanov from which the new work was derived clearly would provide expert testimony of relevance here. The critic who could point out features of the work to help the jury "see" the work with more sophistication would provide important expert testimony. The movement analyst who could point out similarities and differences to the jury would also be an obvious expert. Scholars of many kinds could assist in the determination of "originality." (145)
Many legal issues remain unresolved. At least one commentator has argued that prior legal decisions in other art forms would have been sufficient to resolve all the remaining issues in Horgan. (146) I am less certain of this. The law places great reliance on precedent. To the extent that problems involving choreography can be resolved in this way, it is appropriate that they should be. But I would also urge caution. Choreography is different from /p. 78 other art forms and raises special problems. The new Copyright Law, after all, recognized that this art form needed its own explicit category of protection, as so many choreographic works could not be subsumed under existing categories of copyright. Choreography shares characteristics with music, drama, visual arts, and so forth. But it is not identical with any of them, and we should be cautious in assuming that precedent from those arts will solve entirely problems in choreographic works. For example, although music might seem to present many close analogies, the court itself gave us an indication of the need for caution. "The single instant" of a photograph of a movement, it said, "communicates far more than a single chord of a Beethoven symphony." (147)
The Horgan case represents an important step in implementation
of the new rights granted to choreographers in the Copyright Law
of 1976. The court indicated some areas yet to be addressed and
thought that a fuller factual record, with expert testimony, at
the trial court, could have solved certain problems. The very
definition of "choreographic works," and the meaning
of "originality," "expression," and "substantial
similarity" with regard to choreographic works must await
further scrutiny by the dance world and interpretation by the
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(1) 17 U.S.C. 101 et seq. Choreographic works are provided for
under "Subject matter of copyright: In general," 17
U.S.C. 102(a)(4). For good summaries of the provisions of the
1976 law, see Nicholas Arcomano, "Choreography and Copyright,
Part Two," Dance Magazine (May 1980), 70, 119; Kathleen Anne
Fisher, "The Copyright in Choreographic Works: A Technical
Analysis of the Copyright Act of 1976," Copyright Law Symposium
31 (1984): 1450-1490.
(2) .Registration of Claims to Copyright, 37 C.F.R. 202.7 (1976).
A good summary of the efforts to copyright choreography prior to the Copyright Law of 1976 is provided in Nicholas Arcomano, "Choreography and Copyright, Part One," Dance Magazine (April 1980), 58-59. See also, Gary D. Ordway, "Choreography and Copyright," Bulletin of the Copyright Society 15 (1967): 172-189, 176-182.
Loie Fuller attempted to copyright her choreography for Serpentine Dance in the late nineteenth century. When she sued for infringement, the court held that it was not protected as it was merely "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." Fuller v. Bemis, 50 F. 926, 929 (C.C.S.D.N.Y. 1892) Copyright protection, the court noted, was available only for stage productions which constitute "a dramatic composition" which "tell[s] some story." Id. For an overview of the factual history of this case, see Heather Doughty, "The Choreographer in the Courtroom: Loie Fuller and Leonide Massine," Proceedings, Fifth Annual Conference, Dance History Scholars (February 1982), 35-39. See also, Robert Freedman, "Is Choreography Copyrightable?: A Study of the American and English Legal Interpretations of 'Drama,'" Duquesne University Law Review 2 (1963): 77-95, 80-82; "Choreography," Dance News 22, 2 (February 1953): 4, 6.
Legal commentator Leon I. Mirell, in 1952, noted that "ballet" had been included as an /p. 79 example of "dramatic" or "dramatico-musical" composition, eligible for copyright, as early as 1948 in Copyright Office Regulations. "Legal Protection for Choreography," New York University Law Review 27 (1952): 792-815, 800-803.
Hanya Holm's choreography for Gypsy was notated (by Ann Hutchinson) and copyrighted under the category of dramatico-musical work in 1952. This was the first time that a dance score had been accepted for copyright in this category, and it created considerable excitement in the dance community. Although the Copyright Office accepted the application, there is no report of any infringement action brought by Holm to defend her copyright registration. See Lucy Wilder, "U.S. Government Grants First Dance Copyright," Dance Observer (May 1952), 69; "Copyright by Hanya Holm," Dance Magazine (July 1965), 44. In dance critic Anatole Chujoy's report of this copyright registration, he characterized it is "a real achievement," on the supposed grounds that the notated dances were non-dramatic. Although Chujoy's characterization might be correct, it is not clear that the Copyright Office issued the Copyright registration with that understanding. As Chujoy also reported, the notated choreography for Balanchine's Symphony in C had been rejected previously, although the grounds for the rejection were not made clear. Anatole Chujoy, "New Try To Copyright Choreography," Dance News 12 (February 1953), 4, 6.
Eight years after Chujoy's report, Barbara Meyer claimed that "Abstract choreography has . . . in recent years been accepted for registration" by the Copyright Office. The only example she cites is Balanchine's plotless Symphony in C. Barbara L. Meyer, "The Copyright Question: Some Words To The Wise," Dance Magazine (April 1961), 44-45, 60-61, see 45. Joseph Taubman, a practicing lawyer, reports that he had "been advised that on occasion the Copyright Office, under the former Act, did, in fact, accept a film . . . as a copyright of a work of choreography. Conceivably this could cover abstract dance as well." But he does not report his specific source for this advisement. "Choreography Under Copyright Revision: The Square Peg In the Round Hole Unpegged," Performing Arts Review 10, 3 (1980): 219-256, 233. It might be that the Coypright Office by 1961 had broadened its understanding of "drama" to include abstract portrayals of "mood and emotion." There are no reported infringement suits for these works, however, so we do not know if the courts would have upheld the copyrights.
A novel approach to copyrighting choreography was made in 1953 by Ruth Page. Her book, consisting of written instructions for performing the choreography for her Beethoven Sonata, was accepted for copyright registration. But the Copyright Office added the caveat that it was not expressing any opinion as to whether she could prevail in an infringement action for a performance based on the book. Although the press release issued by Page at
the time described this as a "revolutionary development," Chujoy disagreed, reporting that at least one other author, Louis H. Chalif, had received copyrights for written descriptions of dances. There is no record of an infringement action by either Chalif or Page to test the bounds of their protection. Chujoy contended that the copyright would protect them only against reprinting of their books, not against performance of a work based upon the book. Anatole Chujoy, "New Try To Copyright Choreography," Dance News 22, 2 (February 1953): 4.
Common law protection tracing back to the precedents of British court decisions was also available to choreography prior to the 1976 Copyright Law. Common law protection of unpublished works should have been attractive to choreographers, since few published notations or films of their works, and since performance of a work does not constitute publication. Jeffrey I. Roth, "Common Law Protection of Choreographic Works," Performing Arts Review 5, 1-2 (1974): 75-89; Colleen McMahon, "Choreography and Copyright," Art & the Law 3, 8 (January 1978): 1-2; Melanie Cook, "Moving to a New Beat: Copyright Protection for Choreographic Works," UCLA Law Review 24 (1977), 1287-1312, 1301-1309; Ferris v. Frohman, 223 U.S. 424 (1912) (public presentation of unprinted and unpublished play does not constitute publication; therefore, common law copyright not forfeited). However, no reported cases resolved this issue of common law copyright of choreography. Melville B. Nimmer, Nimmer on Copyright 1 (1992): 2-71 (2.07[D]) One case, Savage v. Hoffmann, raised the issue but was decided on other grounds. 159 F. 584 (C.C.S.D.N.Y. 1908) (manner of dance or posture not eligible for copy- /p. 80 right protection). See Mirell, "Legal Protection for Choreography," 796-797. Indeed, without any fixation of the work, it would be extremely difficult to prove infringement by other performances. Borge Varner, "Copyright in Choreographic Works," in Senate Comm. on the Judiciary, 86th Cong., 2d Sess., Studies on the Copyright Law Revision 94, 103 (Comm. Print 1961) (hereinafter cited as "Copyright in Choreographic Works")
One attempt to use this common law protection was reported in 1963. A performer claimed that she had originated a choreographic composition at her audition for a
production of Gypsy. Her choreography was then used in the production,
performed by her. She sued under common law copyright for royalties
for use of the choreography. (As the choreography had never been
fixed in a tangible medium, such as film or notation, there was
nothing to register for Copyright protection.) In rejecting her
claim, the court appealed to the standard for dramatico-musical
works protected by the Copyright Law then in effect. The court
concluded that, although her performance was "amusing and
entertaining to many, it does not fall within the purview of the
statute as a production tending to promote the progress of science
and useful arts." Relief therefore was denied. Dane v.
M. & H. Company, 136 U.S.P.Q. 426 (Copyright Decisions,
1963-1964) (N.Y. Sup. Ct. 1963).
(3) In 1982, Thomas Overton reported that only 63 choreographic and pantomimic works had been registered in 1980, out of a total of 464,743 copyright registrations, the subject of lament by various commentators. "Unraveling the Choreographer's Copyright Dilemma," Tennessee Law Review 49 (1982): 594-621, 595. But no one seems to have compiled the empirical data that would make this number meaningful. The relevant comparison would be between registered and unregistered works created in one year in a particular art form. We do not know if choreographers register their works with less frequency than artists in other art forms, although Overton and others seem to assume the problem is more severe in choreography.
Barbara A. Singer, e.g., reports that "the majority"
of the choreographers she interviewed for her 1984 article had
not registered their works. But many of the persons she interviewed
are known to have registered many works, including George Balanchine
and Ruth Page. Others have been actively involved in notation
of works, such as Antony Tudor and staff of the Dance Notation
Bureau. Her report, like Overton's, lacks the empirical data necessary
to make a meaningful assessment of practices in the choreographic
community. "In Search of Adequate Protection for Choreographic
Works: Legislative and Judicial Alternatives vs. The Custom of
the Dance Community," University of Miami Law Review 38 (1984):
287-319, 290 n. 11.
(4) 789 F.2d 157 (2d Cir. 1986).
(5) Id. at 160.
(6) For a detailed explanation of the administration of the George
Balanchine Trust, administered by Barbara Horgan, see Sheryl Flatow,
"The Balanchine Trust: Guardian of the Legacy," Dance
Magazine (December 1990), 58-61.
(7) The 101-page book, The Nutcracker: A Story & A Ballet,"
was written by Ellen Switzer. It includes sixty color photographs
(by Steven Caras and Costas) of New York City Ballet dancers performing
in the work. Permission to use the photographs had been granted
by the New York City Ballet, the unions, and the individual dancers
in the photographs, but none of those persons owned the copyright
on the ballet itself. "Balanchine Estate Denied Copyright
On Dance Photos," New York Law Journal 194 (November 25,
1985), 1, 3.
(8) Horgan v. MacMillan, 621 F.Supp. 1169, 1170 (S.D.N.Y.
(9) Patricia Solan Gennerich, "One Moment in Time: The Second
Circuit Ponders Choreographic Photography as a Copyright Infringement,"
Brooklyn Law Review 53 (1987): 379-407, 382. This article includes
a detailed summary of the case for those unfamiliar with it.
(10) S. Rep. No. 473, 94th Cong., 1st Sess. 52 (1975) (hereinafter cited as S. Rep.); H.R. Rep. No. 1476, 94th Cong., 2nd Sess. 53-54 (1976) (hereinafter cited as H.R. Rep.). These reports, typically issued after hearings on proposed legislation, are enormously important in determining Congressional intent, when the language of the statute is not clear and complete in itself.
/p. 81 Legal commentator Melanie Cook expresses concern
that this restriction might exclude works such as those by Fred
Astaire which incorporate social dance. "Moving to a New
Beat," pp. 1298-1300. But this concern seems unwarranted.
Simply performing existing social dance steps would fail to meet
the requirements of "originality" discussed below (Part
B). But Astaire did much more than this, by using existing material
to create new works, just as artists in all genres have often
used existing artistic material (melodies, phrases, and so on)
to create a new, original work.
(11) H.R. Rep. 52 (emphasis added).
(12) The Copyright Office defined "choreographic work"
prior to the 1976 Law as "a ballet or similar theatrical
work that tells a story, develops a character, or expresses a
theme or emotion by means of specific dance movements and physical
actions." Copyright Office, Circular 41: Choreographic Works
1 (April 1977); accord, 37 C.F.R. 202.7 (1976). However, as works
need no longer be registered as dramatico-musical works under
the new 1976 statute, this definition is not necessarily applicable
to the new category of "choreographic work."
(13) Notably, the 1976 statute omits any requirement for fixation
in writing of any dramatic element present in the work. In several
early revision bills, which were never passed, this would have
been required. Varner, "Copyright in Choreographic Works,"
(14) S.Rep. 52; H.R. Rep. 53-54. Both reports, using identical
language, stress that the list of categories "is 'illustrative
and not limitative,' and that the seven categories do not necessarily
exhaust the scope of 'original works of authorship,'" thus
further emphasizing the intended flexibility of the categories.
(15) Of the numerous examples, one of the most ambitious is Francis
Sparshott, Off the Ground: First Steps to a Philosophical Consideration
of the Dance (Princeton: Princeton University Press, 1988), see
especially "Part II: Theory: On Dance."
(16) The American Heritage Dictionary (1976): 238; accord, Oxford
English Dictionary 1 (1971): 383 .
(17) 17 U.S.C. 102(a).
(18) Horst Koegler, The Concise Oxford Dictionary of Ballet (New
York: Oxford University Press, 1977), p. 118.
(19) Deborah Jowitt, "Rebel Turned Classicist," The
New York Times, March 10, 1974.
(20) Koegler, The Concise Oxford Dictionary of Ballet, 122.
(21) "Requiring grace, poise and coordination, gymnastics
is more akin to dancing than to other rougher, contact sports."
Linda Bird Francke, "On the Beam," Newsweek (May 19,
(22) A typical ice show has been described as a "melange
of athletics, dance, mime, music, song, circus, variety show and
sartorial spectacle, . . . [falling] somewhere between 'The Nutcracker'
and the circus." Van Gelder, "The 'Ice Capades' at 35,"
The New York Times, January 9, 1976.
(23) Taubman notes a long line of cases that suggests that mere
"stage business" in a play is not protected. "Choreography
Under Copyright Revision," 238-240. How should we distinguish
such movement from movements in a choreographic work which is
protected? This is a special problem in performance art and multi-media
works which include what the dance community would consider "choreography."
(24) E.g., Moves, by Jerome Robbins, La Creation, by David Lichine,
and Eaters of Darkness, by Walter Gore. Clive Barnes, "Ballet:
Timeless 'Moves,'" The New York Times, April 2, 1976;
Carlota, by Jose Limon, Clive Barnes, "Dance: 'Mexican Tribute,'"
The New York Times, April 6, 1975; Session, by Lar Lubovitch,
and One Good Turn by Sara Rudner, Clive Barnes, "Dance: Lar
Lubovitch," The New York Times, April 25, 1976. Early
modern dance pioneer Mary Wigman also experimented for a time
with dances done without music or other audio accompaniment. John
Martin, Introduction to the Dance (New York: W.W. Norton &
Company, Inc., 1939), p. 234.
(25) "The impression made on the refined ears of musical
experts or their views as to the musical excellence of plaintiff's
or defendant's works are utterly immaterial on the issue of misappropriation;
for the views of such persons are caviar to the general -- and
plaintiff's and defendant's compositions are not caviar."
Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946). "Nor
need plaintiff's be." Id. at 473 n. 25 (emphasis added).
(26) In her comments submitted in 1959 to the Copyright Office
concerning the copyright of choreographic works, Agnes de Mille
suggested that "choreography is neither drama nor storytelling
. . . . It is an arrangement in time-space, using human bodies
as its unit of design. It may or may not be dramatic or tell a
story." Comments and Views Submitted to the Copyright Office
on Copyright in Choreographic Works, in Senate Comm. on the Judiciary,
86th Cong., 2d Sess., Studies on Copyright Law Revision (Comm.
Print 1961) (hereinafter cited as Comments and Views), 110.
(27) Leslie Erin Wallis, "The Different Art: Choreography
and Copyright," UCLA Law Review 33 (1986): 1442-1471, see
especially 1446, 1455; Cook, "Moving to a New Beat,"
(28) Martha M. Traylor, "Choreography, Pantomime and the
Copyright Revision Act of 1976," New England Law Review 16,
2 (1981): 227-255, 229.
(29) Ibid., 228-230.
(30) Overton, e.g., understands choreography as dance "created
for presentation to an audience." "Unraveling the Choreographer's
Copyright Dilemma," 594 n. 2; 600.
(31) 789 F.2d at 158.
(32) Id. at 161-162.
(33) 789 F.2d at 161. Quoting Compendium of Copyright Office Practices,
Compendium II (1984), 450.01.
(36) 17 U.S.C. 102(a)
(37) Golding v. R.K.O. Pictures, Inc., 35 Cal. 2d 690,
697, 221 P.2d 95,99 (1950).
(38) See, e.g., Overton, "Unraveling the Choreographer's
Copyright Dilemma," 601-602.
(39) Varner, "Copyright in Choreographic Works," 100.
(40) Melanie Cook, for example, suggests using precedents from
music and literature. "Moving to a New Beat," 1297-1298.
(41) Aronson v. Baker, 43 N.J. Eq. 365, 371, 12 A. 177,
180-81 (Ch. 1888).
(42) 17 U.S.C. 102(b). As Nicholas Arcomano notes, "Ballet
and modern dance vocabularies, after all, do contain basic movements
which can be used by anybody and incorporated into an 'original
choreographic work.'" "Choreography and Copyright, Part
Two," 70. See also, Taubman, "Choreography Under Copyright
(43) 789 F.2d at 161. Quoting Compendium of Copyright office practices,
Compendium II (1984), 450.06.
(44) Wallis, "The Different Art," 1454.
(45) "An author who takes existing materials from sources
common to all writers, arranges and combines them in a new form,
giving them an application unknown before, is entitled to a copyright,
notwithstanding the fact that he may have borrowed much of his
materials and ideas from others, provided they are assembled in
a different manner and combined for a different purpose, and his
plan and arrangement are a real improvement upon existing modes."
Stanley v. Columbia Broadcasting System, 35 Cal. 2d 653,
664, 221 P. 2d 73, 79 (1950). "Literary property in the fruits
of a writer's creative endeavor extend to . . . novel sequences
or a combinations of otherwise hackneyed elements." Golding
v. R.K.O. Pictures, Inc., 35 Cal. 2d at 694-95, 221 P. 2d
(46) See Ordway, "Choreography and Copyright," 176 n.
(47) One commentator asks "whether dance figures and patterns
are so well defined that anything less than a dramatic presentation
could be deemed to be an infringement of a prior original choreographic
work." With regard to traditional dance patterns, he wonders
about "the amount of variations [sic] which would provide
originality." John Schulman, Comments and Views, 109.
(48) 789 F.2d at 163. /p. 83
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(52) 17 U.S.C. 102(a)(2).
(53) Agnes de Mille, Comments and Views, 110.
(54) A few contemporary choreographers have continued to create
new story-ballets. The late John Cranko, choreographer for the
Stuttgart Ballet, is credited with having successfully revived
"the full-evening, full-company, story-ballet with straightforward
narrative." Anna Kisselgoff, "Stuttgart Ballet: Tetley
Era Begins," The New York Times, May 28, 1975.
(55) 17 U.S.C. 102(a)(3).
(56) 789 F.2d at 161.
(57) 17 U.S.C. 102(a)(5).
(58) Barnes v. Miner, 122 F. 480, 491 (C.C.S.D.N.Y. 1903)
(protection denied for stage spectacle with no dramatic content).
(59) 789 F.2d at 162.
(60) Id. at 163.
(61) Reported by Nicholas Arcomano, "Choreography and Copyright,
Part Two," 70.
(62) 17 U.S.C. 102(b).
(63) S. Rep., 54; H.R. Rep., 57.
(64) S. Rep., 54; H.R. Rep., 56.
(65) Comments and Views, 113.
(66) The Copyright Office would not register, under previous law,
"a mere dance step or variation as such, apart from a developed
choreographic work in which it appears." Copyright Office,
Circular 41: Choreographic Works (April 1977), 1.
(67) Gelsey Kirkland described her efforts to duplicate the move
for Don Quixote, a leap that was photographed by Martha Swope
and published widely in the popular press in 1978. Dancing on
My Grave (Garden City, New York: Doubleday & Company, Inc.,
1986), p. 191.
(68) Lincoln Kirstein suggests, for example, that "certain
choreographers are inventive and do originate certain combinations,
but so do musicians invent sound and rhythms, but they cannot
reserve them for their unique use, except in the context of a
given use, as in a symphony." Comments and Views, 114.
(69) 17 U.S.C. 102(a).
(70) S. Rep., 51; H. Rep., 52.
(71) See, e.g., McMahon, "Choreography and Copyright,"
(72) At the time of passage of the 1976 Copyright Revision, the cost of a notated score in Labanotation ranged from $500 to $3,000. Barbara Kibbee, "Copyright Protection for Choreography," Art & the Law, 2, 2 (January 1976): 1, 4-5, 4. In an article advising lawyers on how to counsel choreographers under the then-new Copyright Law, Robert W. Woods noted that the required fixation could be in notation, film, or videotape, all of which were expensive. "Copyright and Contracts: Counseling the Choreographer," Oklahoma Law Review 31 (Fall 1978): 969-978, 971. But Woods did not indicate any preference for method of fixation or anticipate problems in discrepancies between different fixations.
It should be noted that the National Endowment for the Humanities has awarded several major grants to assist in notation of important choreographic works, although for purposes of creating research archives important to scholars, not specifically to assist choreographers obtain copyrights. For example, the Dance Notation Bureau received $100,000 in Fiscal Year 1983 "to Support the documentation by Labanotation of the choreography of George Balanchine." National Endowment for the Humanities, Eighteenth Annual Report -- 1983 (Washington, DC: National Endowment for the Humanities, 1984), p. 127. The Bureau received /p. 84 an additional $45,000 for the project in Fiscal Year 1984, National Endowment for the Humanities, Nineteenth Annual Report -- 1984 (Washington, DC: National Endowment for the Humanities, 1985), p. 120; $61,115 in Fiscal Year 1985, National Endowment for the Humanities, Twentieth Annual Report -- 1985 (Washington, DC: National Endowment for the Humanities, 1986), p. 122; $31,815 in Fiscal Year 1986, National Endowment for the Humanities, Twenty-First Annual Report -- 1986 (Washington, DC: National Endowment for the Humanities, 1987), p. 111, and $46,895 in Fiscal Year 1987, National Endowment for the Humanities, Twenty-Second Annual Report -- 1987 (Washington, DC: National Endowment for the Humanities, 1988), p. 125. In Fiscal Year 1982, the Bureau received a grant of $11,750 "To support documentation of the works of choreographer Antony Tudor." National Endowment for the Humanities, Seventeenth Annual Report -- 1982 (Washington, DC: National Endowment for
the Humanities, 1983), p. 134. The grants were awarded by the Division of Research Programs in its "Research Materials: Tools and Reference Works" program. Less prominent choreographers might be alarmed that so much money was devoted to these two choreographers, despite their indisputable historic importance.
In addition, the National Endowment for the Arts awards grants
through its "Dance/Film/Video" program "to expand,
enhance, and preserve the art of dance." In Fiscal Year 1991
(the most recent year for which data has been published), eleven
such grants, totalling $201,000 were awarded. Although these grants
are not intended specifically to help choreographers copyright
their work, the resulting documentation would be available for
that purpose, if choreographers had not yet copyrighted their
works. See National Endowment for the Arts, 1991 Annual Report
(Washington, DC: National Endowment for the Arts, 1992), p. 23.
(73) Overton, "Unraveling the Choreographer's Copyright Dilemma,"
(74) Taubman, "Choreography Under Copyright Revision,"
245. See also, discussion of Ruth Page, note 2, above.
(75) Comments and Views, 110.
(76) Comments and Views, 111.
(77) The "manner" of "dance or posture" by individual performers was not eligible for protection in Savage v. Hoffman, 159 F. at 585 (preliminary injunction against vaudeville performance denied on other grounds).
"Voice, motions, or postures of actors" are not included in "dramatic and moving picture rights of a copyrighted story." Harold Lloyd Corp. v. Witwer, 65 F.2d 1, 22 (9th Cir. 1933) (injunction denied against silent movie allegedly infringing copyrighted story).
"The voice, motions, and postures of actors and mere stage business may be imitated because they have no literary quality and cannot be copyrighted." Chappell & Co., Ltd. v. Fields, 210 F. 864, 865 (2d Cir. 1914).
"Gestures or motions" are not protected, in absence
of a story. Seltzer v. Sunbrock, 22 F. Supp. 621, 628 (S.D.Cal.
1938) (injunction denied against roller-skating game described
in copyrighted books).
(78) Interpretive elements were given protection, so long as they had been written down, in a case granting an injunction against a pantomimed scene of a play. "Movement, gesture, and facial expression, which addresses the eye only, are as much a part of the dramatic composition as is the spoken language which addresses the ear only; and that part of the written composition which gives direction for the movement and gesture, is as much a part of the composition, and protected by the copyright, as is the language prescribed to be uttered by the characters." Daly v. Palmer, 6 F.Cas. 1132, 1137 (C.C.S.D.N.Y. 1868) (No. 3,552). The pantomimed scene in Daly v. Palmer was the subject of two other cases, which reached the same result. Daly v. Webster, 56 F. 483 (2d Cir. 1892); Brady v. Daly, 83 F. 1007 (2d Cir. 1892), aff'd, 175 U.S. 148 (1899). Loie Fuller attempted to rely on this case as precedent, but was denied on the grounds that her Serpentine Dance did not tell a story. See Note 2, above; see also, Freedman, "Is Choreography Copyrightable?" 83-84.
An injunction restraining a production of an operetta, including "its scenery, casts of characters and their individualities, and the dress and deportment of its dramatis personae," was issued in Aronson v. Baker, 43 N.J. Eq. at 376, 12 A. at 183, although it is not clear whether those aspects had been fixed in some way.
A perpetual injunction under state law of unfair competition was
granted to protect the very unique characterization, including
the "style of dress, costumes, or mannerisms," of Charlie
Chaplin. Chaplin v. Amador, 93 Cal. App. 358, 358, 269
P. 544, 544 (1928).
(79) Melanie Cook noted this problem with the use of film or videotape for the required fixation: "The individual style of the dancer . . . intervenes between the pure movement that the choreographer created and the filmed version of the dance." "Moving to a New Beat," 1296.
(80) This problem was noted in Overton, "Unraveling the Choreographer's
Copyright Dilemma," 606-607.
(81) 17 U.S.C. 101 (definition of "created").
(82) 789 F.2d 157 at 158.
(83) Id. at 163 (emphasis added).
(84) Id. at 162.
(85) Id. This point was also made in Wallis, "The Different
Art," 1450 n. 57.
(86) Some commentators believe that it is not clear whether these
common law rights will be available to protect choreography under
state common law. See McMahon, "Choreography and Copyright,"
(87) 17 U.S.C. 301(b)(1). This provision is discussed by Taubman,
"Choreography Under Copyright Provision," 235-238, and
by Wallis, "The Different Art," 1450-1451.
(88) Comments and Views, 113.
(89) "The Different Art," 1445.
(90) Ibid., 1446.
(91) Ibid., 1447; see also 1448, 1456-1458.
(92) Ibid., 1458, 1464-1465. Taubman also rejects suggestions
that movement could be protected under the Copyright Law without
a fixation. "Choreography Under Copyright Revision,"
(93) "The Different Art," 1465.
(94) Taubman argues that this common law copyright will continue
to have an important and necessary role for choreographic works
which are not fixed. "Choreography Under Copyright Revision,"
246-250. Overton also seems to accept the possibility of common
law copyright, despite the various problems noted by other commentators.
"Unraveling the Choreographer's Copyright Dilemma,"
(95) "Choreography and Copyright," 175. There is case
law suggesting that a work must be fixed in some way in order
to have even common law protection. E.g., Palmer v. DeWitt,
47 N.Y. 532 (1872) (play protected by common law only if reduced
to tangible form, but not published)
(96) Ibid., 183. Mirell made the same point years earlier in "Legal
Protection for Choreography," 795.
(97) "Choreography Under Copyright Revision," 254.
(98) "The Different Art," 1450-1451.
(99) "The Different Art," 1460-1461.
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(101) "Copyright of Choreography and Pantomime," 230-235.
(102) Ibid., 239.
(103) Ibid., 235. Ordway reaches a similar conclusion. "Unraveling
the Choreographer's Copyright Dilemma," 610-611.
(104) Traylor, "Copyright of Choreography and Pantomime,"
(105) Ibid., 243.
(106) Ibid., 244.
(107) 17 U.S.C. 106(4).
(108) 17 U.S.C. 106(5).
(109) "Where there is strong evidence of access, less proof
of similarity may suffice. Conversely, if the evidence of access
is uncertain, strong proof of similarity should be shown before
the inference of copying may be indulged." Golding v.
R.K.O. Pictures, Inc., 35 Cal. 2d at 695, 221 P.2d at 98.
(110) Martinetti v. Maguire, 16 F.Cas. 920, 920 (C.C.Cal.
1867) (No. 9,173). For a detailed description of this work, see
Donald Saddler, "The Black Crook," Dance [Periodical,
East Stroudsburg, PA] (October 1941), 17, 23-24. For a discussion
of the concerns of the public over the "immorality"
of the work, see Anatole Chujoy, "It Can't Happen Now!"
Dance [Periodical, East Stroudsburg, PA] (January 1937), 7, 31.
(111) 16 F.Cas. at 920-21.
(112) Barnes v. Miner, 122 F. at 489. It was considered a significant change to substitute a male for a female, as "the sensations and impressions conveyed . . . are not the same, except in the general sense that they are lascivious and immoral." Id. The order of events in the spectacle was considered immaterial. Id. at 492.
A pantomimed scene was considered to be infringed by one "substantially identical, in words, actions, circumstances, and accessories," Brady v. Daly, 83 F. 1007, 1011 (2d Cir. 1892), aff'd 175 U.S. 148 (1899). In considerably more detail, the trial court had used the test of whether "the same use is made . . . of the same series of events, to excite, by representation, the same emotions, in the same sequences." Daly v. Palmer, 6 F. Cas. at 1138.
Infringement of an operetta was found where some of the dialogue
was "identical," the characters played "substantially
the same parts," despite changes in their names, and the
music was "similar." Aronson v. Baker, 43 N.J.
Eq. at 374, 12 A. at 182.
(113) Infringement was found on the basis of strong similarity of the basic dramatic situation, in a play and a movie, despite major differences in the specific dialogue and events. Golding v. R.K.O. Pictures, 35 Cal. 2d at 697, 221 P.2d at 98-99.
An injunction was denied against an allegedly infringing movie in Harold Lloyd Corp. v. Witwer. The court noted "a large amount of original material" and the absence of "any slavish copying" in the movie, 65 F.2d at 16, and only generalized similarities between plots. Id. at 28.
Similarly, relief was denied as the only similarity existing between
two plays, "the general theme, the mise en scene, the suicide
and the rest, are easily accounted for upon the assumption of
independent composition," although a higher standard of similarity
was required because there had been no showing of access. Christie
v. Cohan, 154 F.2d 827, 827 (2d Cir. 1946).
(114) John Martin urged that the "analogy with music is a far truer one" than dramatic works. Comments and Views, 111.
Agnes de Mille also urged the test of infringement of music for
dance. "The protection [of music] is based on a time measurement
-- not more than eight bars can be duplicated without infringing
authorship rights. An equivalent measurement could be worked out
for choreography." Comments and Views, 110.
(115) Similarity in music is not simple and mechanical. Substantial
similarity between two songs was found in Heinz v. Universal
Pictures Co., 154 F.2d 480 (2d Cir. 1946), based on a virtually
"identical" passage in both works, id. at 487. The case
also suggests that similarity would be shown by "a single
brief phrase . . . so idiosyncratic in its treatment as to preclude
coincidence." Id. at 488. "There may be wrongful copying,
though small quantitatively." Id. at 487. n. 8.
(116) "We would take away a part of the protection conferred
on authors if we held that there could be no public representation
without these accompaniments" of scenes, dress, and a regular
theatre. Russell v. Smith, 12 Q.B. 217, 236-37, 116 Eng.
Rep. 849 (1848) (infringement of dramatic song).
(117) Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274
F.2d 487, 489 (2d Cir. 1960).
(118) 789 F.2d at 163.
(123) Id. at 159.
(124) 17 U.S.C. 102(a).
(125) See, e.g., Joseph Margolis, "The Autographic Nature
of the Dance," Journal of Aesthetics and Art Criticism (hereinafter
JAAC) 39, 4 (Summer 1981): 419-427; Adina Armelagos and Mary Sirridge,
"The Identity Crisis in Dance," JAAC 37, 2 (Winter 1978):
(126) Barbara A. Singer, "In Search of Adequate Protection
for Choreographic Works: Legis- /p. 87 lative and Judicial
Alternatives vs. The Custom of the Dance Community," University
of Miami Law Review 38 (1984): 287-319.
(127) 789 F.2d 157 at 158.
(128) Id. at 163.
(131) Over ten years ago, Martha Traylor anticipated the considerable problems in determining what would constitute the "original work of authorship" for new versions of the many older ballets that are otherwise in the public domain. "Copyright of Choreography and Pantomime," 242-244, 246-248.
Gennerich discusses determination of infringement in either quantitative
or qualitative terms and expresses skepticism that the photographs
in the Balanchine case ultimately would have been found to infringe
Balanchine's choreography. "One Moment in Time," 400-401.
But this seems contrary to the spirit of the court decision, discussed
in the text.
(132) "Whatever may be the technical differences in the exhibitions at those two places, if the result is so nearly the same as to produce the impression that they are identical upon ordinary spectators . . . one ought to be held a mere colorable imitation of the other." Martinetti v. Maguire, 16 F.Cas. at 921.
"The issue of similarity is . . . limited to a comparison on the basis of an average observer looking to that part of the literary work which can properly be protected from infringement." Golding v. R.K.O. Pictures Inc., 35 Cal. 2d at 700, 221 P.2d at 100-01.
"The test, with respect to infringement, . . . is that impression
received by the average reasonable man upon a comparative reading
of the two works." Stanley v. Columbia Broadcasting System,
35 Cal. 2d at 661, 221 P.2d at 78 (infringement of radio program
(133) The classic definition of "copy" is "that which comes so near to the original as to give to every person seeing it the idea created by the original." West v. Francis, 5 B.&Ald. 738, 743, 106 Eng. Rep. 1361 (K.B. 1822) (emphasis added) But this is ambiguous, as it could refer either to (1) any person on the face of the earth, brought into court to view the work, or (2) every person who might, of their own volition, attend a performance or exhibition of the work.
"The problem of similarity between compositions, whether
literary, musical or dramatic, is a question of fact to be determined
ultimately by a comparison of the two works upon the basis of
the opinion of the average individual possessing a practical understanding
of the subject. Stanley v. Columbia Broadcasting System,
35 Cal. 2d at 660, 221 P.2d at 77 (emphasis added).
(134) Arnstein v. Porter, 154 F.2d 464, 473 n. 22 (2d Cir.
(135) Chatterton v. Cave, 3 A.C. 483, 502 (1878). The court noted that the exclusion would have been justified even if the jurors could read French.
One commentator on the then-proposed revision of the Copyright
Act notes his personal inability to make such judgments: "In
recent years, various patterns of dancing have appeared upon the
living stage and in motion pictures. Some of them seem, to uninitiated
persons like myself, to be very much the same." John Schulman,
Comments and Views, 109.
(136) Originality is to be determined by expert analysis, not the lay observer test. Dissection and analysis to determine what aspects of a work are protectible is properly performed by experts, not by the jury using the "ordinary observer" test. Golding v. R.K.O. Pictures, 35 Cal. 2d at 700, 221 P.2d at 100.
Contra, "The question of originality and novelty is one of
fact for the jury," based upon substantial evidence by expert
witnesses. Kovacs v. Mutual Broadcasting System, 99 Cal.
App. 2d 56, 63-64, 221 P.2d 95, 112-13 (1950) (infringement of
radio program format upheld).
(137) Expert testimony that the infringed work was a "dramatic
song," and thus entitled to protection, was accepted in Russell
v. Smith, 12 Q.B. at 244.
(138) "Copyright of Choreography and Pantomime," 255.
(139) See Overton's suggestions, "Unraveling the Choreographer's
Copyright Dilemma," 613-617. /p. 88
(140) Gennerich, "One Moment in Time," 397.
(141) "Moving to a New Beat," 1296.
(142) Gennerich notes the difficult sorting out these non-choreographic elements in determining infringement. "One Moment in Time," 398.
In Tate v. Fullbrook, 1 K.B. 821 (C.A. 1908), involving infringement of a "dramatic piece," the court said that the appropriate comparison should be between the protected words as presented to an audience, including "all their dramatic surroundings. . . . the stage situations and scenic effects," id. at 829, even though only the words of the piece are protected. Id. at 832-34.
A comparison based on the complete performances, not just the protected elements, carried considerable weight in a case involving infringement of a protected operetta by another operetta. The court granted a temporary injunction based largely on testimony of a person who had attended performances of both works and swore "that the music of the defendant's operetta is very similar to that of [the plaintiff's] throughout, and that some parts of the dialogue of the defendant's operetta are exactly like parts of the dialogue of [plaintiff's operetta]." Aronson v. Baker, 43 N.J.Eq. at 374, 12 A. at 182.
Where only certain portions of a radio broadcast were protected,
the jury was required to read or view the works in their entirety,
even though their comparison was to be only of the protected portions.
Golding v. R.K.O. Pictures, Inc., 35 Cal.2d at 699, 221
P.2d at 100.
(143) 789 F.2d at 163.
(144) Rule 702, Federal Rules of Evidence. The Rules were adopted
by Pub.L. 93-595; 88 Stat. 1926 and were effective as of July
1, 1975. They considerably expanded allowable evidence. In the
case of expert testimony, this Rule expanded allowable experts
by adding "other specialized knowledge."
(145) Wallis noted this as an appropriate role for "dance experts and fact finders." "The Different Art," 1454.
Gennerich was skeptical of the ability of experts to address these
issues. For example, she said that "additional expert testimony
describing the original Ivanov contribution would be difficult,
if not impossible, to obtain." "One Moment in Time,"
395. But this is exactly the role of trained dance historians.
(146) Gennerich, "One Moment in Time," 382.
(147) 789 F.2d 157 at 163.
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