Copyright and Choreography: Protecting Choreography in Theatrical Productions

Theatre is more than a structure with seats and a stage.  It is a visceral, immersive, and collective experience.  It is community.  Amidst the coronavirus pandemic of 2020, as productions remain closed, we realize how much we take the joy of live theatre for granted.  Thankfully, creators are not easily discouraged, and members of the industry have formulated unique ways to keep theatre alive, ready for the day when theatres open again.

When spectators walk through the theatre doors to take their seats, they often do not consider the behind-the-curtain processes and aspects of the production that bring a show to fruition, from inception and early creation to rehearsals and preview to premiere and beyond.

One such intricacy of this production process is choreography.  Choreography encompasses many different types of movement set in a show—stage directions and blocking, specific movements and dance numbers, even stage combat sequences.  Many timeless musicals, such as West Side Story and A Chorus Line, would not be the icons they are today without their signature choreography.

As a choreographer, how can you retain ownership of your creative work while simultaneously allowing its use in stage productions to gain widespread visibility?

Protecting Choreography

Prior to 1978, choreography could only be protected if the piece qualified as a “dramatic work” under the Copyright Act.  However, choreography is not always “dramatic” in nature.  Thanks to the copyright reform, choreography is now specifically protected under the category of “pantomimes and choreographic works.”

In 2017, the U.S. Copyright Office further clarified the definition of choreography, stating that it is “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.”  It can include elements such as rhythmic movements of the body in a designated space and sequence and may be used to convey a story, theme, or abstract concept.

If a choreographic work falls under one of the above described types of choreography afforded protection under copyright law, then it is protected when three conditions are met: (1) it is an original work, (2) it is an expression as opposed to an idea, and (3) it is “fixed in any tangible medium of expression.”

Original

The originality bar is a fairly low standard, and a work can still be original when it contains movements that did not originate with the choreographer (i.e. standard ballet positions) or even if it is derived from a preexisting choreographic work or other type of copyrightable subject matter.  The standard to be protectable by copyright is that the choreographer must add a substantial amount of new material that is “independently created” by the choreographer and contains a “sufficient amount of creativity.”

Idea versus Expression

An idea is not protectable under copyright law; only the expression of an idea can be protected.  Case law has applied this to choreography by differentiating movements such as sequences of yoga poses and simple ballet class combinations as unprotectable ideas rather than copyrightable expression.  As the Ninth Circuit held in Bikram’s Yoga College of India v. Evolution Yoga, “‘successions of bodily movement’ often serve basic functional purposes.  Such movements do not become copyrightable as ‘choreographic works’ when they are part and parcel of a process.”  These movements are unprotectable even if they “could fit within some colloquial definitions of dance or choreography.”

Fixed

Because choreography is an intangible, as opposed to material, art form, it is not automatically “fixed” the way a painting or a sculpture might be.  Choreography may be fixed by (1) transcribing the movement using standard dance notation, such as Labanotation or Banesh Dance Notation; (2) documenting the movement in textual descriptions, photographs, or drawings; or (3) conducting a video recording of a performance of the choreography.

Once a choreographic work has met the originality, expression, and fixation requirements, the owner of the work enjoys exclusive rights, whether or not the work is registered with the U.S. Copyright Office.

Ownership and the Work Made for Hire Doctrine

Who owns the choreography created for a theatrical performance?  The owner of the choreography often differs from the owner of the production.  It is important to correctly determine ownership, especially in instances where the choreography may be licensed with the production for future performances or utilized in new adaptations of the production, such as when a work is transformed from a stage musical into a movie musical or vice versa.

Dance contracts often explicitly state who owns the copyright to the choreography under the contract, and usually, ownership of the rights resides with the choreographer.  Theatrical unions, namely the Dramatists Guild of America and the Stage Directors and Choreographers Society, often encourage theatre industry professionals, including choreographers, to retain ownership of the copyrights in their works of original creation.  This is in sharp contrast to many entertainment professionals in the television and film industry, who generally create or perform work on what is known as a work made for hire basis.  Many agreements between choreographers and producers provide an option for the choreographer to have the choice to direct future companies of the production.

Choreographers who are hired to create a piece for a dance company, production company, or other entity, may also find themselves under the work for hire category if hired as an independent contractor.  A similar occurrence may take place in the commercial employment context as well.  If the work a choreographer employee creates falls within the scope of their employment by the company, then the company will likely own the copyrights in the choreography.  This is often the case in the theme park, cruise line, and community theatre industries.

Conclusion

Choreography is one small piece of the pie that gives a production its transformative nature—providing an escape for audience members from all walks of life to experience the magic of theatre.  Whether you are a professional choreographer seeking to protect your work or a beginner looking to get started in the industry, we are here to help with your legal needs every step of the way.

Photo by Angelos Michalopoulos on Unsplash