The Office has no authority to register claims to copyright in material that falls outside the scope of federal statutory protection. Individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet. Likewise, the U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if the routine is novel or distinctive.
The individual elements of a dance are not copyrightable for the same reason that individual words, numbers, notes, colors, or shapes are not protected by the copyright law. Individual dance steps and short dance routines are the building blocks of choreographic expression, and allowing copyright protection for these elements would impede rather than foster creative expression.
The legislative history indicates that “the technical term ‘choreographic works,’ as used in the context of copyright, may refer both to the dance itself as the conception of its author to be performed for an audience, and to the graphic representation of the dance in the form of symbols or other writing from which it may be comprehended and performed.”
Thus. the U.S. Copyright Office cannot register a claim to copyright in social dances or simple routines, because they do not constitute copyrightable subject matter. Likewise, the Office cannot register a claim to copyright in ordinary motor activities, functional physical movements, competitive maneuvers, feats of physical skill or dexterity, or the like, because such movements lack the necessary creative expression to constitute a work of original authorship.
Social dances, simple routines, and other uncopyrightable movements are not “choreographic works” under Section 102(a)(4) of the Copyright Act. As such, they cannot be registered, even if they contain a substantial amount of original, creative expression. For the same reason, the Office cannot register derivative social dances, derivative simple routines, or the like. A dance that is merely an adaptation of a social dance or simple routine is also considered a social dance or simple routine that does not qualify as a choreographic work under Section 102(a)(4) of the Act.
The dividing line between copyrightable choreography and uncopyrightable dance is a continuum, rather than a bright line. At one extreme are ballets, modern dances, and other complex works that represent a related series of dance movements and patterns organized into a coherent compositional whole. At the other extreme are social dances, simple routines, and other uncopyrightable movements. Many works fall somewhere in between.
The registration specialist will use objective criteria to determine whether a particular work falls on one side of the continuum or the other. The presence or absence of a particular element is not determinative. Instead, the specialist will consider the intrinsic nature of the work, including its individual elements as well as the work as a whole, to determine whether it is the type of dance that constitutes copyrightable subject matter under Section 102(a)(4) of the Copyright Act.
Examples of social dance include the following:
- Ballroom dances.
- Folk dances.
- Line dances.
- Square dances.
- Swing dances.
- Break dances.
Choreographic works are compositions that are intended to be performed by skilled dancers, typically for the enjoyment of an audience. By contrast, social dances are intended to be performed by members of the general public for their own personal enjoyment. In other words, “social dances are intended to be executed by the public, not to be performed for the public as audience.”
Performing a social dance is often a participatory, social experience, while the performance of a choreographic work is an expressive act that is typically intended to be performed for the enjoyment of others. Whereas social dances are generally capable of being performed by members of the public, choreographic works typically cannot.
Choreography and pantomime are the only types of works comprised exclusively of bodily movements that are eligible for copyright protection under Section 102(a)(4) of the Copyright Act. Non-expressive physical movements, such as “ordinary motor activities” or “functional physical movements” — in and of themselves — do not represent the type of authorship that Congress intended to protect as choreography.
The U.S. Copyright Office cannot register a claim to copyright in such non-expressive activities. Examples of non-expressive physical movements that cannot be registered with the Office include exercise routines, aerobic dances, yoga positions, and the like. The Office cannot register claims to copyright in athletic activities or competitive maneuvers as such, because they do not constitute copyrightable subject matter under Section 102(a)(4) of the Copyright Act.
- Football plays.
- Slam dunking maneuvers.
- Skateboarding or snowboarding.
These types of activities are typically performed by skilled players for the enjoyment of an audience and in some cases they may be accompanied by music or narrative text provided by a play-by-play announcer. However, competitive activities are comprised of athletic maneuvers rather than dance steps, and such maneuvers are non-expressive. Competitive activities lack the capacity for uniform performance because each contest usually involves a different set of maneuvers, and any dramatic content involves the “drama” of the competition rather than a story that is told or a theme that is evoked by the players’ movements.
“Basketball games do not fall within the subject matter of federal copyright protection because they do not constitute ‘original works of authorship’ under 17 U.S.C. § 102(a)” although “recorded broadcasts of NBA games – as opposed to the games themselves – are . . . entitled to copyright protection.”) For similar reasons, the Office cannot register feats of physical skill or dexterity or other choreographed productions that do not involve the movement of a dancer’s body.