The Copyright Act recognizes choreography as a distinct category of copyrightable authorship. The statute does not define the term “choreographic works.” However, the legislative history states that this term has a “fairly settled meaning.” The word “choreography” is derived from the Greek words “choreia,” meaning “dance,” and “graphikos,” meaning “to write.” A dance is the “static and kinetic succession of bodily movement in certain rhythmic and spatial relationships.”
The Office defines (draft) choreography as the composition and arrangement of “a related series of dance movements and patterns organized into a coherent whole.” By definition, choreography is a subset of dance. As such, a work of authorship cannot be registered as a choreographic work unless it is comprised of dance steps, dance movements, and/or dance patterns. However, the term choreography is not synonymous with dance. The legislative history for the 1976 Copyright Act clearly states that “‘choreographic works’ do not include social dance steps and simple routines.”
Elements of Choreographic Works
Choreographic works typically contain one or more of the elements described below, although the presence or absence of a given element is not determinative of whether a particular dance constitutes choreography. Choreography is executed through the physical movement of a dancer’s body. Specifically, a choreographic work directs the rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage.
A choreographic work “represents a related series of dance movements and patterns” organized into an integrated, coherent, and expressive compositional whole. Non-expressive physical movements, such as ordinary motor activities, functional physical activities, competitive maneuvers, and the like are not registerable as choreographic works. Likewise, de minimis dance steps and movements are not protectable, because they do not contain a sufficient amount of choreographic authorship.
Choreography is usually accompanied by a specific musical composition, although in some cases it may be accompanied by the recitation of a literary work, such as a poem, or it may be performed in silence. The accompaniment for a choreographic work typically provides an established rhythm or theme for the work. In some cases, choreographic works may be intended to express – through bodily movement – the themes or emotions conveyed by a specific musical composition or literary work. “Choreography is commonly devised to be performed with music; the dance may be intended to express a theme suggested by the music, or the music may be intended to heighten the dramatic effect of the dance.”.
A choreographic work may present a story or theme or it may be an abstract composition. There is “no reason why an ‘abstract’ dance, as an original creation of a choreographer’s authorship, should not be protected as fully as a traditional ballet presenting a story or theme.” Choreographic works often tell a story, develop characters or themes, and convey dramatic concepts or ideas through a sequence of bodily movements presented in an integrated, compositional whole. “Choreographic works of this character are typified by ballets.”
A choreographic work may convey dramatic action through specific dance movements and physical actions, even though it does not tell a story or follow a narrative structure. “Many ‘modern’ dances, as distinguished from traditional ballets, are no doubt creative works of authorship; and although no ‘story’ may be readily evident in a dance of the ‘modern’ variety, the dance movements are expected to convey some thematic or emotional concept to an audience.”
By contrast, choreographic works published prior to January 1, 1978 cannot be registered unless the work tells a story, develops a character, or expresses a theme or emotion by means of specific dance movements and physical actions. Choreography was not mentioned in the 1909 Act, and as a result, dances movements could be registered only if the work qualified as a “dramatic work.”
Choreographic works are typically performed before an audience. By contrast, social dances are not intended to be performed for an audience; they are typically performed for the personal enjoyment of the dancers themselves. This is one of the distinctions between choreography (which is eligible for copyright protection) and social dances (which do not constitute copyrightable subject matter).
Choreographic works are typically performed by skilled dancers. This is another distinction. As a general rule, social dances are not created for professional dancers; they are intended to be performed by the general public. While ballroom dances, line dances, and similar movements generally can be performed by members of the public, choreographic works typically cannot.