This document discusses copyright law as it relates to choreography in the United States. It notes that while copyright law dates back to 1790, choreography was not recognized as a copyrightable work until 1976. It outlines some of the challenges of applying copyright to dance, including the intangible and collaborative nature of dance works. It also summarizes two important court cases - Horgan v. MacMillan established that single dance steps and social dances cannot be copyrighted, while a case involving Martha Graham's estate established that dances could be considered "work for hire" if created as an employee. The document argues that for choreography to receive stronger copyright protections, a widely used dance notation system must be developed and the dance community needs more education around

1. 1
Choreography and Copyright Law in the United States
Abstract:
Copyright law in the United States dates back to 1790, but the legal framework protecting
choreography and dance is fairly novel and limited. Choreography was first mentioned as a
copyrightable work in 1976, and in its infancy it presents many shortcomings. These
shortcomings come from a number of places including the nature of dance and art itself as an
always evolving entity. The always changing nature makes congress unable to fully define what
dance and choreography are in the legal arena and how to regard them in copyright cases. Other
shortcomings come from the structural complexities in creating a dance work such as the
collaboration of music, movement, sets and costumes all belonging to separate authors and the
lack of an adequate dance notation system that is widely practiced and disseminated. A final
recognizable hinderance comes from the lack of awareness and education of the dance
community on the breadth and limitations of their rights. Since the adoption of The Copyright
Act of 1976 in 1978, many legal commentators have devoted their time and energy to analyzing
the copyright protections of choreography. However, many questions remain unanswered by the
members of the dance community. The following research provides a digestible definition of the
parameters of the 1976 federal copyright law addendum and a brief legal history of choreography
in federal courts for both non-dancers and non-legal experts. The research identifies and
discusses many of the limitations in copyright law in respect to choreography while also
recognizing philosophical issues in legal specificity and concrete definitions of abstract entities
like originality, ideas and expression, and what constitutes a tangible media. The research is
focused on the beauty in artistic collaboration and potential detrimental legal implications of
doing so. Possible solutions to legally motivated problems faced by dancers and choreographers

2. 2
are also proposed throughout the span of the paper as well as behavior to emulate from past
dance professionals.
Choreography and Copyright Law in the United States
Copyright laws are designed to protect the basic rights of intellectuals and creatives by ensuring
personal ownership of original intellectual properties and creative works that includes rights to
use, distribute, and recreate. (Copyright Law, 284-286) However, perhaps more importantly is
that copyright law is a statute effectively aiding in the preservation of creativity and originality.
To illustrate this point, if someone chooses a career in choreography, spending time, energy, and
effort on creating original works, and someone else could get paid for creating and performing
their dance, why would anyone choose a career in the arts? There would be no motivation to be
innovative, and the arts, if not governmentally subsidized, would swiftly die.
Copyright law in the United States dates back to 1790, but choreography has only been
recognized under this law since the Federal Copyright Law of 1976. Prior to this addendum,
choreography was not even mentioned as a copyrightable material. (Copyright Law, 284-286)
In outlining the basic parameters of copyright law, a material must only meet two conditions to
be considered copyrightable. First, the work must be original, and second, the work must be
fixed in a tangible medium. While these conditions seem straightforward, in the true nature of
law, complexities arise in the vague word choice and articulation by the United States
Congressional Studies, that will be addressed in the research after the basic parameters of
copyright law are properly articulated and understood. (United States Cong.)

3. 3
The common practices for copyright trials are tried differently among circuit courts in the United
States, which is another complexity in itself that will not be discussed in this paper. For the
purpose of this research endeavor, the process of the Second Circuit court is used, as it is a
digestible step-by-step format. (United States Court of Appeals) First, to test if something has
infringed upon copyright law, the court blatantly asks the defendant, the person accused of
appropriating the work, if they copied the plaintiff’s work, or the person who claims the
originality. If the defendant denies, the court does a thorough check to see if the defendant had
access to the plaintiff’s work at any point in their histories. If the defendant is not likely to have
had access to the work, the second step is determining a striking similarity between the two
works. Proving this is the only way a plaintiff could prevail. Striking similarity means the
defendant could not have plausibly created the work independently because the works are so
similar. In contrast, if the defendant was indeed likely to have access to the original work, the
two works are tested for probative similarity as the second step. There are a number of ways this
is tested, but one is the probative, or substantial similarity test, which compares only the works in
their final form of production and are examined for exactly that - substantial similarity. (United
States Cong.)
To further test for similarity, the court conducts an audience test where it is determined whether
to an ordinary observer, in a subjective and factual analysis, if the works appear similar to the
tested degree of substantial or striking. More generally, does an ordinary person see that the
defendant appears to have taken the “heart” of the work in question and how much of the heart
was taken. As outlined by copyright lawyer, Matthew Bunker, determining the heart of the work
is a result of subjective reasoning and can often be misconstrued because of this. The heart of the

4. 4
work refers to the properties that allegedly made it original or unique in the first place, and
prompted the plaintiff to initially come forward with copyright allegations. This decision is based
on light scrutiny, as not to misrepresent aesthetic similarities as copyright such as in dance
genres like ballet, jazz or lyrical. (Bunker) Most ballets will have similar movement vocabulary,
as will most jazz dances and lyrical dances. For example, in ballet, a male variation that includes
fouette turns a la second followed by landing in a deep fourth position with arms outstretched
into a series of tombe coupe jetes does not constitute copyright.
To prove copying in a situation where the similarity test is not enough proof, the plaintiff would
go to a third step and rely on an expert testimony, particularly one from the arts. Structural
similarities due to the genre of the work are not considered and the audience test is held under
medium scrutiny as a more discerning observer. This means that again, aesthetic similarities and
movement vocabularies common to the dance genre are not considered, but the arts professional
looks on the pieces for copying in the order of dance steps and overall amount of steps that are
ordered similarly to a similar piece of music and overall similar “heart of work.” (Bunker)
Since the basis of copyright law is understood, this research can proceed with a dissection of the
issues in legal framework surrounding choreographic copyright. A common Latin phrase, now
used as everyday legal jargon, is “stare decisis” which translates to “let the decision stand.” This
is significant because many court cases, particularly copyright cases, are decided by what was
ruled in a similar case before it. (Bunker) In choreography, there are no truly successful legal
precedents, making the “stare decisis” decision-making process flimsy and ineffective in
protecting future works. Only two cases concerning choreography and copyright have been heard
by a federal court in the history of copyright law. Both included high-profile pioneers of dance,

5. 5
George Balanchine and Martha Graham. Through these cases came a lot of development in
choreographic copyright, but also exposure of inefficiencies. (VanCamp)
In the preceding case concerning Balanchine, Horgan v. MacMillan, the Second Circuit ruled
that single steps and recognized patterns are uncopyrightable. To clarify, one single step to a
dancer is what one word is to an author. Words cannot be copyrighted, thus dance steps cannot
be copyrighted. Even if a choreographer is known for the step, or the generation of a certain
movement, it is uncopyrightable i.e. the Bournonville jeté. Just as trademark dilution happens to
Kleenex and Google because a population misuses the words to more generalized terms like all
facial tissues or online searches, this can also happen to dance combinations like turns, time steps
and common combinations like two pas de bouree into a pirouette or sequences at the ballet
barre. (Horgan v. Macmillan)
This case also produced another interesting ruling that read, “social dance and simpler routines
are not copyrightable.” This includes the Charleston, the Jitterbug, and of course the Whip and
the Nae Nae. This ruling is also hypothetically enough grounds to leave many ballet, hip-hop and
postmodern works, to name a few, unable to achieve copyrightable status. First, a look at the
roots of ballet establishes it as a social and cultural dance as first performed by the European
courts of King Louis XIV. Secondly, hip-hop dance is also a social dance performed first by
Black and Central Americans on streets of large cities. Also, in a discrepancy of “simpler
routines,” it could be argued that because postmodern gestures are humanistic, they are simple
and thus could also not be copyrighted. For example, in Duet, choreographed by Paul Taylor, he
and his partner do nothing but sit in silence onstage for three minutes. Does this degrade his
work to an uncopyrightable state? (Horgan v. Macmillan)

6. 6
In this case, congress defined copyrightable choreographic works as “more intricate dances, such
as the ballet, devised for the execution by skilled performers for an audience.” This definition is
detrimental to the effective protection of dance, because of its lack of specificity and inclusion of
all currently existing and potentially evolving dance forms and intentionalities. (Horgan v.
Macmillan) Dance and choreography has evolved to be humanistic, site specific, internally
experienced, and inclusive of not just technically skilled performers such as in the Judson
Church Era. (Jackson) One popular thought in the dance community hopes to increase the
specificity of the federal definition of copyrightable choreographic works to include these new
forms of dance and decrease room for interpretability. However, another thought sees that if
Congress were to define specifically what the term “choreography” means, future advancements
in dance and human movement experience would be restricted by the legal framework of a
definition that simply includes today and does not look to what innovations cannot be
foreseen.These dueling philosophical issues are partially why this art form will struggle in the
legal arenas, because it will hurt the art to make the definition more strict and hurt the protection
of the art to leave it to interpretability. (VanCamp)
A long legal battle concerning Martha Graham that ended in 2004 also included an interesting
ruling that produced two very distinct emotions in the dance world. The specifics of the case are
complex because of the many appeals, or reappearances in court, so it will not be discussed in
this study. In simple terms, Graham wrote friend Ronald Protas as heir to her estate in her will.
After her death, Protas claimed the copyright to 70 of Graham’s most famous works and wanted
to prevent the Martha Graham Dance Company from performing them as well as using her name.
The court then found that most of the dances and the Graham name belonged to the Martha

7. 7
Graham Dance Center because of the work-for-hire clause in copyright law. This meant that
because Graham had sold her dance school to a nonprofit foundation she created, all of the
dances she created after 1956 were created as an employee and thus belonged to the Dance
Center. (Dunning)
Protas’s lawyer considered it an insult for Martha Graham to be considered an employee, but the
director of the Dance Center spoke of arrangements made by other recognizable choreographers
of the time that drew up contracts that enabled them to remain owners of their dances even as an
employee. He recognized that Graham had been negligent in creating this sort of arrangement.
This is a particularly resonating lesson for modern day freelance choreographers for dance
studios, conventions, or companies that want to remain owners of their work. A simple
contractual agreement would suffice as grounds to release the work-for-hire clause. (Dunning)
There were two varying emotions resulting from this case, as referenced earlier, that present
some philosophical issues today. One side of the community was happy for the Martha Graham
Dance Center to get the rights to continue to perform her dances so they would not perish with
her. This comes from the nature of dance as an intangible thing. Dance is perishable, just as its
authors and performers are because there is no sculpture, manuscript or painting to view after its
creation. Dance is extremely time-sensitive to that specific performance or display. However,
with the fixation in a recurring company repertoire, these dances can be preserved and performed
for audiences spanning generations. The second school of thought acknowledged that Martha
Graham, and the heir she chose does not own these dances, thus many choreographers working
for employment or in collaboration do not own their work. (VanCamp)

8. 8
Dance is one of the most expensive art forms to create because of the use of dancers, studio
space, music, costumes, set, venue, stage, lighting, etc.
To illustrate the intricately woven and interdependent collaboration of the arts, Pearl Primus’s
Strange Fruit, is a mesh of poetry, spoken text, costuming, choreography, and dance. (Jackson)
These kinds of collaborations are often ones that produce the dances discussed in history books,
and are viewed as timeless and part of the classics. However, how different would this dance be
without the access to the words? What if the costume was different? Would the movement still
tell the story? Would Strange Fruit be the same work studied now? Some may say yes, while
others argue that the absence or alteration of one portion of the work would change the result
entirely thus illustrating the complexities of collaborative work in the legal arena. Another
collaborative issue is a choreographic method using improvisation and dancer or assistant
involvement. Often is the case that a dancer will be moving in an improvisational setting that
sparks a section of the choreography, or an assistant will choreograph works. This is observed by
Lev Ivanov and Marius Petipa’s choreographic relationship in Swan Lake, The Nutcracker and
other famous ballets where Petipa would leave Ivanov, his assistant, to choreograph entire acts of
ballets. (Snyder)
Merce Cunningham, a notable pioneer of Modern dance, was once quoted saying, “you have to
love dancing to stick to it. It gives you nothing back, no manuscripts to store away, no paintings
to show on walls and maybe hang in museums, no poems to be printed and sold, nothing but that
single fleeting moment when you feel alive.” (VanCamp) This quote, while poetic, is also one of
the biggest shortcomings in the legal protection of dance. As previously mentioned, dance is
intangible. Copyright requires work to be fixed in a tangible medium to be considered

9. 9
copyrightable. Agnes De Mille, a notable choreographer of the 20th century suggests that video
is the only way for dance to be truly preserved because in film style, emotion, execution, and
texture of the work can also be captured as opposed to just written notes on the steps’ order.
Alwin Nikolais, another pioneer of modern dance, took extra precautions when ensuring the
ownership of his work because he took two different videos - one in production with costumes,
lights, and staging, and one as just bare choreography. However, even videos have their
limitations, because anyone experimenting with dance for the camera can see how infinite
camera angles and perspectives can drastically change the way an audience views a work.
(VanCamp)
The tangible medium requirement for copyright is perhaps the biggest obstacle choreography
faces in becoming fully legally protected. Prior to the 1976 copyright addendum that included
choreography as a copyrightable work, it was presented in court as a type of dramatic
composition such as theater and playwriting. (United States Cong.) This produced many
problems. While the arts may have similarities in theory, the structure, production and overall
nature of dance and choreography was too dramatically different from that of the theatrical arts
to effectively be protected legally on the same grounds partially because of tangibility. For one, a
theatrical production operates on a tangible manuscript complete with stage directions and
delivery notes. Theatre and music are also dependent on the words or sounds, arrangement and
characterizations that are also noted in the scripts or musical notations. (Peter Pan Fabrics, Inc. v.
Martin Weiner Corp.)
Dance does have notation systems that were developed over time, like Labanotation that was
adopted in 1928 by Rudolf Laban, but none are extremely effective. (Jackson) The lack of

10. 10
effectiveness of dance notation systems stems from the fact that there is not a notation system as
universal as a script or a sheet of music that all dancers and choreographers are literate in.
Moving forward in its ability to be effectively protected under copyright laws, dance requires
that a notation system be devised that is widely disseminated and accepted as in theatrical works
and music.
Solutions to combating the downfalls of copyright law in respect to choreography begin with a
more legally literate dance community. This can be achieved through basic awareness objectives
and educational initiatives that focus on the legal complexities choreographers would likely face
or could avoid in their future careers. Classes focusing on copyright law and its relationship to
choreography should be implemented in collegiate dance curriculums. While it is unrealistic to
assume that this message would reach all dancers, this solution is a positive start to creating a
generation of more educated dance consumers and participants. These students are the future of
presenting choreography and could one day be called to testify as an expert in the audience test
of a copyright infringement case. These basic law literacy classes in college dance specializing
curriculums or traveling conventions and seminars would be helpful tools to equip current and
future dance professionals with insights to protect their careers and avoid financial stress or
potential litigation. Understanding a problem is the first phase in repairing it. Just as dancers can
be uneducated on their legal rights, it is unrealistic to assume lawmakers fully understand the
complexities of dance either. An educational initiative would produce a legally literate group of
individuals of which some could then choose to participate in lobbying efforts in Washington
D.C. that could potentially make change to the laws currently protecting dance. If dancers
understand the laws that protect them currently, the community can then effectively understand
what advancements are needed to ensure adequate protection.

11. 11
Educating dancers on their rights, how to preserve them and how to create change in the current
law is essential in maintaining choreography as a substantial career path. With the recent fusions
of dance with videos on digital and social media, the art form is more widely disseminated and
reaches far more than the traditional audience. This is helpful in allowing dance to flourish and
take a new place in society, but it is also dangerous in preserving rightful ownership of a work.
Now, more than ever, understanding of copyright law is vital to a choreographer’s success. The
legal framework surrounding copyright protection of choreography is relatively novel, and
because of this there are shortcomings that can only be truly fixed by educated dance
professionals with advanced legal literacy and a passion for improving their world.
Works Cited
Bunker, Matthew, J.D. "Media Law: Copyright Infringement." Media Law and Regulation.
University of Alabama, Tuscaloosa. 22 Mar. 2015. Lecture.
"Copyright Act of 1976." Encyclopedia of the First Amendment (1976): 284 - 286.
Copyright.gov. United States Copyright Office. Web.

12. 12
Dunning, Jennifer. "Martha Graham Center Wins Rights to the Dances." Editorial. The New
York Times 24 Aug. 2002: n. pag. The New York Times. The New York Times, 23 Aug.
2002. Web. 1 Mar. 2016.
Horgan v. Macmillan. 789 F.2d 157. United States Court of Appeals, Second Circuit. 28 Apr.
1986. Print.
Jackson, Lawrence. "Harlem Renaissance and Black Dance" Dance History II. The
University of Alabama, Tuscaloosa. 18 Feb. 2016. Lecture.
Martha Graham School and Dance Foundation INC. v. Martha Graham Center of Contemporary
Dance INC. 380 F.3d 624. United States Court of Appeals, Second Circuit. 18 Aug.
2004. Print.
Peter Pan Fabrics, Inc. v. Martin Weiner Corp. 274 F.2d 487, 489. United States Court of
Appeals, Second Circuit. 21 March 1960. Print.
Snyder, Rita. "Marius Petipa’s Ballets" Dance History I. The University of Alabama,
Tuscaloosa. 2 Nov. 2015. Lecture.
United States. Cong. Senate. Committee on the Judiciary. Copyright in Choreographic Works.
86th Cong., 2nd sess. S. Doc. 60682. Washington, D.C.: U.S. Gov. Print. Off., 1960.
Print.

13. 13
Van Camp, Julie. “Copyright of Choreographic Works.” Entertainment, Publishing and the Arts
Handbook. Ed. Robert Thorne, John David Viera, and Stephen F. Beimer. Deerfield, IL:
Clark Boardman Callaghan, 1994-95. 59-92. Print.