The U.S. Copyright Office may register a claim to copyright in a pantomime, provided that the work constitutes copyrightable subject matter under Section 102(a)(4) of the Copyright Act and provided that it contains a sufficient amount of original authorship.
When evaluating a claim to copyright in a pantomime, the registration specialist will use objective criteria to determine whether the work constitutes copyrightable subject matter. In making this determination, the specialist will focus on the intrinsic nature of the work, rather than the specific performance that is reflected in the deposit copy(ies).
“To qualify for copyright protection, a work must be original to the author.” In the case of a pantomime, original authorship requires the composition and arrangement of a related series of movements, gestures, and facial expressions organized into an integrated, coherent, and expressive whole.
The U.S. Copyright Office may register a pantomime, provided that the work contains a sufficient amount of creative authorship that was created by the author of that work. The registration specialist will use objective criteria to determine whether a pantomime satisfies these requirements by reviewing the information provided in the application and by examining the deposit copy(ies), including the individual elements of the work as well as the pantomime as a whole.
The specialist will not consider subjective criteria that have no bearing on whether the originality requirement has been met, such as the author’s intent, the aesthetic value, artistic merit, or intrinsic quality of the work, or the symbolic meaning or commercial impression of the work.
The Copyright Act protects “original works of authorship.” To qualify as a work of authorship, a pantomime must involve “the real pantomime of real men.” Pantomimes performed by animals, robots, machines, or any other animate or inanimate object are not copyrightable and cannot be registered with the U.S. Copyright Office.
Uncopyrightable movements may be used as the building blocks for a pantomime, in much the same way that notes and short musical phrases provide the basic material for a composer. Pantomimes that incorporate stock gestures, ordinary motor activities, or even athletic exercises may be protected by copyright, provided that the work as a whole contains a sufficient amount of original authorship.
Pantomime is the art of imitating, presenting, or acting out situations, characters, or events through the use of movements, gestures, and facial expressions. Individual movements, gestures, or expressions by themselves are not copyrightable.
Likewise, the U.S. Copyright Office cannot register a pantomime consisting of a few stock gestures, movements, or facial expressions with minor linear or spatial variations, such as pretending to be stuck inside an invisible box or using stiff arms and legs to suggest the movement of a mechanical doll.
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 “ordinary motor activities” or “functional physical activities” – in and of themselves – do not represent the type of authorship that Congress intended to protect as choreography or pantomime.
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.
These types of activities are typically performed for the enjoyment of an audience. However, competitive activities are comprised of athletic maneuvers rather than artistic movements, gestures, or facial expressions, and therefore lack sufficient creative expression.
Competitive activities lack the capacity for uniform performance because each contest usually involves a different set of maneuvers, they lack compositional arrangement because athletic movements are rarely organized into a coherent compositional whole, 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.
For similar reasons, the Office cannot register feats of physical skill or dexterity that do not involve the physical movement of a performer’s body in an integrated, coherent, and expressive compositional whole.
If the claimant owns the copyright in a pantomime and the textual or musical accompaniment for that work, the music or text should be separately claimed in the application. If the claimant does not own the copyright in the accompaniment, that element of the work should be excluded from the claim.
As discussed in Section 806.3, a pantomime may be embodied in a visually perceptible form, provided that the deposit copy(ies) identifies the precise movements, gestures, and facial expressions of the performer and provided that it is sufficiently detailed to serve as directions for the performance of the work.
If the deposit copy(ies) is not sufficiently specific or if it is so general and lacking in detail that the pantomime could not be performed therefrom, the registration specialist may communicate with the applicant or may refuse to register the work as a pantomime.
In some cases, it may be possible to register a textual description as a literary work if the application asserts a claim in “text” and it may be possible to register a photograph or drawing as a work of the visual arts if the applicant asserts a claim in “artwork.” In both cases, the registration would extend to the description, depiction, or illustration of the movements, but the movements themselves would not be registered as a pantomime.
When registering a claim in a pantomime using the online application, the applicant should select “Work of the Performing Arts” as the “Type of Work.” The applicant should provide the name of the author who created the pantomime authorship that appears in the work and the applicant should provide the name of the claimant who owns the copyright in that material.
The Performing Arts Division may accept a claim in “pantomime,” “mime,” or even “dumb show,” provided that the work is a pantomime under Section 102(a)(4) of the Copyright Act and provided that it contains a sufficient amount of original expression.
To register a pantomime with the U.S. Copyright Office, the applicant should deposit a copy of the work that is sufficient to identify the applicant’s claim to copyright in the pantomime and to allow the Office to examine the work for copyrightable authorship.