Throughout American history, dance has been the “stepchild” of the arts family,1 an afterthought when it comes to recognition, protection, and celebration. Even as societal recognition of dance’s value grew in the twentieth century,2 legal recognition lagged behind. Only after decades of advocacy by choreographers did Congress amend the Copyright Act3 to include choreographic works in 1976.4
But in the nearly fifty years since, very few choreographers have registered their dances for copyright.5 Virtually none of those who have registered dances enforce that copyright to protect their work.6 Yet, choreography continues to proliferate and evolve absent this authorial protection. While others have studied choreographic copyright, often to bemoan its shortcomings or to call for reform,7 there is little academic discussion of how choreographers protect their work without copyright. Choreographers’ conception of ownership diverges from what the copyright regime assumes is valuable about their work — to protect this sense of ownership, the choreographic community turns to private law arrangements and relies on community norms.
This Note synthesizes interview insights from postmodern dance artists to uncover the choreographic community’s norms on ownership and how these artists leverage private law arrangements to operationalize these norms. Part I sketches out the history of copyrighting dance and the current state of choreographic copyright requirements. Part II applies those requirements to seminal postmodern works to illustrate unresolved tensions about the scope of copyright protection. Relying on a series of interviews with postmodern artists,8 Part III identifies the copyright regime’s shortcomings for postmodern choreographers, while Part IV explains how the choreographic community has instead sought refuge for their rights in private law and extralegal norms.
I. Copyrighting Dance: Then and Now
While many think of intellectual property (IP) as a private right over one’s work,9 a “distinctly public purpose” underlies that right.10 Statutory IP protections stem directly from Congress’s constitutionally provided power to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” in order to “promote the Progress of Science and useful Arts.”11 As a result, the dominant theory in American copyright law is one of economic incentives to promote the general welfare.12 Under this theory, the copyright regime “supplies the economic incentive to create and disseminate ideas” by balancing authorial protections for work with the need for the free flow of ideas in the public domain.13 Not all art forms and artists qualify for copyright under this structure.14 This Part briefly traces the history leading to choreographic works’ inclusion in the Copyright Act and then explores the requirements to establish choreographic copyright.
A. The Choreographer’s Fight for (Copy)Rights
Copyright did not formally extend to choreographers for centuries.15 Even as a larger spectrum of work came under the Copyright Act’s purview,16 dance was only copyrightable insofar as it qualified as a “dramatic composition.”17 To merit protection, choreography had to “tell a story, develop a character or express a theme or emotion by means of specific dance movements and physical actions.”18 In 1892, Loïe Fuller became the first to assert copyright protections for her choreography,19 but she was thwarted by this “unrealistic and narrow approach” to recognizing dance that allowed courts to import their own moral judgments about the value of choreography.20
The tide began to turn only after dance garnered significant artistic acclaim and economic value in the mid-twentieth century.21 A uniquely American form of concert dance was on the rise,22 intertwining with the “Golden Age” of Broadway choreography23 to propel choreographers into the national spotlight.24 The Copyright Office signaled an openness to protecting choreography in response to dance’s ascendance by removing dance from performances ineligible for protection and adding ballets and pantomimes to examples of registrable dramatic compositions in 1948.25 Just a few years later, Hanya Holm became the first choreographer to protect her work via copyright, successfully registering her Broadway choreography for Kiss Me, Kate.26
Her success invigorated dance advocates27 and led to a renewed interest in amending the Copyright Act to explicitly include choreography as a protected category.28 The Copyright Office commissioned a study by Borge Varmer to inform potential revisions to the Copyright Act.29 Varmer’s study centered on how the term “choreographic works” ought to be understood for copyright purposes.30 The report also included commentary by several titans of the dance world, nearly all of whom agreed that choreography ought to be protected as “a category of its own in the field of copyright.”31 In 1976, Congress amended the Copyright Act to include “pantomimes and choreographic works” as an enumerated category.32 Choreographers who register their works now receive exclusive rights to reproduce, perform, and display the work, as well as rights over derivative works and distributing copies.33
B. May I Have This Dance? Understanding Choreographic Copyright
To qualify for copyright, a work must be (1) “fixed in [a] tangible medium of expression,” (2) an original creation, and (3) within one of the listed categories of the Copyright Act.34
A fixed version of the work both satisfies the constitutional mandate of protecting an author’s “Writings”35 and provides a benchmark against which to measure copyright infringement claims. For choreography, fixation must have “sufficient detail”36 so as to “allow[] the work to be performed in a consistent and uniform manner.”37 While the Copyright Office has indicated that “textual description, photographs, [or] drawings” may suffice,38 choreographers most commonly fix their choreography in video recordings.
Originality, the next touchstone of copyright, has two major components: independent authorship and creativity.39 Independent authorship does not necessarily require novelty. Theoretically, two identical works could be eligible for copyright as long as both were the product of independent parallel authorship.40 Creativity is a similarly permissive standard, allowing authors to curate and arrange uncopyrightable elements into expressive, protected works as long as an arrangement has some “creative spark.”41 Not every “combination of unprotectable elements automatically qualifies for copyright protection,”42 but “the requisite level of creativity is extremely low.”43
When applied to dance, the question of creativity bleeds into that of copyrightable subject matter. The Copyright Office has emphasized that individual dance steps or even “short dance routines” are uncopyrightable, no matter how creative they might be.44 The Office has also made clear that choreographic works are a “subset of dance”45 — in other words, only certain dances constitute copyrightable choreography.
Neither Congress, courts, nor the Copyright Office have provided definitive answers as to what counts as choreography for copyright purposes. Congress provided little guidance when amending the Act,46 and the courts have yet to explore choreographic copyright in much depth.47 The closest thing that the courts have found to be a legal authority on this issue is the Copyright Office’s advisory materials,48 which define choreography as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.”49 Social dances, single dance steps, and simple routines are not copyrightable on their own.50
For innovation to thrive, fundamental dance steps cannot be copyrighted. Limits on the creative use of a plié or a pirouette risk preventing all future creativity in the field of ballet.51 The Ninth Circuit found “individual, stand-alone dance movement[s]” as the uncopyrightable “building blocks for a choreographer’s expression, in much the same way that words . . . provide the basic material for writers.”52 Compilations of these uncopyrightable elements can be copyrighted as choreography as long as the author’s curation creates an “expressive compositional whole.”53 The same rationale technically applies to the Office’s bar on simple routines, although the Office neglects to provide a definition for “simple.”54
Varmer’s 1959 study that informed Congress’s revisions to the Copyright Act makes a similar distinction.55 While he saw “choreography as a medium of public entertainment” that deserved protection, Varmer distinguished between skilled works that merit copyright and social dances or ordinary routines that anyone could create.56 Even then, dance commentators were concerned that such a conscribed definition would invite arbitrary judgments about which forms of dance are worth protecting, cautioning that “[i]t is not the province of the law to judge whether a dance, even the most trite and commercial, has creative original value.”57 The claim that choreography cannot be simple or ordinary signals that copyright would be limited “only to ‘worthy’ . . . or ‘talented’ dance compositions,” a value judgment that the government does not levy “in other forms of the arts.”58 This rigid definition of choreography and lack of clarity for other copyright requirements risk excluding valuable, original work in the field — especially by postmodern artists.
II. May I Have These Dances? Applying Copyright to Postmodern Choreography
When asked to define postmodern dance, Anna Halprin, a pioneer of the field, responded, “Oh God, who cares?”59
Depending on one’s viewpoint, one could characterize postmodern dance in a myriad of ways. Historically, it is seen as a reaction to the stylized movements and conventional narratives of its predecessors. Postmodern artists’ investigation of the quotidian and use of devices for choreographic generation is a far cry from the dramatic plot and formal technique of early modern works. As an ethos, postmodern dance is understood to provide societal critiques, challenge expectations of the art form, and push the boundaries of what is considered dance to shape the future of the field.60
Left: Martha Graham’s Appalachian Spring demonstrates the traditional narrative and stylized movement of early modern pieces.61
Right: Steve Paxton’s Jag Vill Gärna Telefonera was created using a visual “score” of “various cut out pictures of sports and news figures” pasted onto a poster board with “a series of black dots next to the pictures.”62
The postmodern genre illustrates the difficulty that copyright (especially with limited opportunity to adapt via case law) faces when attempting to regulate a rapidly evolving art form. Postmodern work also provides examples of the tension that the copyright regime poses for the broader spectrum of choreography. By applying copyright requirements to seminal postmodern works, section II.A demonstrates how the Copyright Office’s narrow view of copyrightable subject matter excludes large swaths of choreography. Section II.B grapples with the barrier that fixation poses to protecting an inherently mutable art form.
A. Five-Petal Flower and Subject Matter
Many postmodern artists rely on ordinary or “simple” movement — what they call quotidian or pedestrian — in their choreography as a means of commentary on the art form.63 While the Copyright Office claims that an author’s arrangement of these uncopyrightable elements can be registered as long as it constitutes an “expressive compositional whole,”64 it appears that the bar is much higher in choreography than a mere “creative spark.”65
Pilobolus self-identifies as a “rebellious dance company” that tests the “limits of human physicality” with its work.66 Beginning as an “outsider” in 1971, Pilobolus quickly gained acclaim to become a pioneering dance company of the last fifty years.67 The company is known for its signature blend of physical strength and cunning illusion, creating silhouetted choreography of its dancers that pushes the audience to question the bounds of the human form.
Figure: An example of Pilobolus’s “shadow dancing” technique, with a group of dancers “growing” as a seedling to “bloom” as a five-petaled flower, with five dancers artfully intertwined to create the illusion.68
Five-Petal Flower is an example of their silhouette work — set as shadows against a screen, a woman stands resolute as five other dancers “tumble onto the stage, forming the silhouette of a five-petal flower with their intertwined bodies.”69 A giant “hand” moves into frame, ready to pluck at the flower, and motions for the bloom to remain still.70 Instead, the hand “pluck[s]” the head off the woman’s silhouette (to her surprise), only to reattach it once more.71
In 2013, Pilobolus filed to register Five-Petal Flower for copyright but was denied.72 On appeal, the Copyright Office affirmed that the work lacks sufficient “creative authorship” because it is simply a “collection and arrangement of . . . simple movements” like plucking, wiggling, or posing as a flower.73 Despite Pilobolus’s assertions that the award-winning work employs novel techniques and requires intense technical training, the Office found it too “simple” of a routine because it was composed primarily of commonplace gestures.74 The Copyright Office did not elucidate how several people contorting to form a flower is “simple” or how Pilobolus, a dance company hailed for its creativity,75 provided insufficiently creative choreography. It seemed to be enough that it was, through expert performance and unique production elements, approximating the “simple movements”76 of a flower growing.
Many postmodern artists rely much more directly on simple movement than Pilobolus. Yvonne Rainer, a groundbreaking postmodern choreographer, often works with pedestrian movement to subvert the performative expectations of dance and question the boundaries of the form.77 For instance, Rainer’s We Shall Run did exactly what the title suggests and no more: run.78
If the Copyright Office rejected Five-Petal Flower for its lack of creativity in arranging uncopyrightable movement, there is little question that it would reject We Shall Run on the same grounds. Courts have consistently found “the requisite level of creativity” to satisfy copyright to be “extremely low” for other works, requiring only the barest “creative spark, no matter how crude, humble or obvious it might be.”79 Even when a photograph is composed primarily of uncopyrightable elements, courts have found enough creativity in the author’s arrangement of those elements to award copyright.80 Choreography employs a wide range of creative choices about movement, dynamics, timing, and many other elements, much like a composer’s arrangement of uncopyrightable notes into a score or a writer’s curation of words into a story. But the Copyright Office, as seen in its treatment of Five-Petal Flower, seems hesitant to accord protection to choreographic works that are too “simple.” How is a multibodied sculptural creation of a flower simple, but a promotional photo of a bottle of vodka not?81 The Office does not clarify why choreography must clear a higher bar — or even how high that bar is. These hazy standards for copyrightability may deter choreographers from attempting to register their works and impede progress toward defining this contour of choreographic copyright.
B. Trisha Brown, Fixation, and Mutability
Fixation is a constitutional and practical requirement for copyright.82 But for postmodern dance, which often relies on improvisation and choreographic devices to interrogate broader questions, fixation poses pragmatic and theoretical concerns. It is unclear whether such pieces can be sufficiently “fixed” to register for copyright, and whether that fixation can capture what choreographers value most about their works.
In 1971, Trisha Brown premiered Roof Piece across several streets in the SoHo neighborhood of New York, with dancers scattered across different rooftops.83 Brown initiated the piece by performing a movement phrase, and “the dancers were instructed to reproduce the movements they saw and relay them to each subsequent dancer.”84 This chain of visual telephone reversed course midway through the performance, “with the last dancer becoming the initiator of movement and Brown its final receiver.”85 What Brown once confidently sent out into the world, she struggled to receive back in a deliberate critique of movement’s distortion as it is communicated across bodies. Playing with temporal and spatial distance along with the individual interpretation of choreography, Roof Piece “challenges the definition of choreography as a fixed set of movements that are memorised and repeated.”86 In some ways, copyright’s fixation requirement stands in direct tension with the innate ephemerality of such a live, mutable performance.
Left: A still from the original staging of Trisha Brown’s Roof Piece; Brown herself is the originator of the phrase. In the distance (upper left), the next dancer in the sequence strikes a similar pose.87
Right: A site diagram for the 1973 restaging of Roof Piece performance, illustrating the positions of dancers on various rooftops.88
The Copyright Office has stated that the point of fixing choreography is to “reveal[] the movements in sufficient detail to permit the work to be performed in a consistent and uniform manner.”89 Practically, it is not possible to capture every element of Roof Piece into a single fixed medium (whether photos, videos, or notation). More importantly, a theoretically comprehensive fixation would neither meet the Copyright Office’s objective nor engage with the piece’s real value. In Roof Piece, Brown explores the mutability and degradation of gesture as it passes through bodies, space, and time — the movement cannot and should not be replicated in a “consistent and uniform manner.” Restagings of Roof Piece occur in different places, with different dancers, arrangements, and source material; each time, the piece is different in new and unexpected ways.90
The Copyright Office has noted that a choreographic work can be registered if the fixation “allows the dance movements to be perceived and performed by dancers, even if the choreographer left some room for improvisation or if some improvisation is intended in the performance of the work.”91 But even under that guideline, Roof Piece could not successfully be registered. Precedents do exist for registering works when the specific expression varies somewhat each time; for instance, video games that do not uniformly recreate the same visuals for each playthrough are still eligible for copyright protections of the audiovisual works created in the game.92 However, those are slight variations within a constrained universe dictated by the video game’s programming.93 Roof Piece’s only real constraint is the directive to communicate a phrase to other dancers via visual telephone across space. The initial phrase is not set and repeated, but rather an improvisational sequence steeped in Trisha Brown’s movement style.94 Nothing in the piece ensures a “repetitive sequence of a substantial portion” of the original copyrighted work.95
Roof Piece is not alone in this quandary; large swaths of postmodern work involve site-specific or improvisational elements, making it difficult or impossible to adequately fix for the purposes of reproduction. This question even extends beyond dance; in stand-up comedy, “copyright on the fixed version” of a stand-up comedy set “may not protect the altered, unfixed version[s]” that arise from improv or ad-libbing, especially as the work “changes its form, and new ideas and expressions are added to or subtracted from it.”96 Interview respondents were pessimistic about whether copyright would actually provide meaningful protection for mutable works, questioning whether one filmed version of a dance would be sufficient to protect works with improvised sections or performances of the same work in which dancers simply made different choices. The ephemerality and live nature of such performances is in direct tension with copyright’s call for static, fixed writings — especially in postmodern works that employ improvisation or randomization techniques.
III. Why Copyright Falls Short
While the Copyright Office receives over 500,000 applications annually, less than twenty are for choreographic work.97 In interviews, nearly every respondent did not register their choreographic works for copyright. Respondents expressed hesitation that copyright would provide any real benefits, especially given that their conception of ownership extends beyond the rights that copyright traditionally bestows upon authors. In fact, choreographers’ conceptions of ownership track closely with the concept of “moral rights” over one’s art, a set of noneconomic protections authors enjoy over attribution and their work’s integrity. However, both moral rights and copyright pose practical enforcement barriers for choreographers.
A. Copyright Doesn’t Protect What Postmodern Choreographers Value
Above all, postmodern choreographers prize their process and authorial vision. When asked about ownership, every respondent indicated that attribution when an artist “quotes” their work and creative control over a full choreographic work when restaged are two key hallmarks of owning a choreographic work. Copyright does not provide meaningful protection on either front.
Even if a work is copyrighted, there is no requirement for attribution if someone references or builds upon that work; copyright only protects attribution insofar as the entire work is infringed.98 Attribution for engagement with or inspiration from their works is a strong desire for respondents, but they acknowledge the variety of limitations on an ironclad norm of attribution. Dance artists are acutely aware that there are no truly “new” ideas, and so, no ownership of those ideas.99 Especially with conceptual or process-oriented work, it is always possible that another choreographer had a completely independent idea for a strikingly similar piece. One respondent notes: “If several pieces look the same, it’s more about a lack of vision than something [stolen] on purpose. It was a running joke during the pandemic . . . . Every piece had masks, isolation, [and] dramatic contemporary movements in a six-by-six box.” Another respondent thinks of their work as guided by questions rather than outcomes, and that “clearly other artists are allowed to ask that question. . . . [M]aybe even their work might look somewhat similar because people have similar experiences on Earth.”
Copyright affords exclusive rights to reproduce a registered work,100 but it does not give any hallmarks of ownership over the process used to create that work. When recreating an entire piece, rather than “quoting” or referencing a work, mechanical reproductions that do not engage in the same creative process do not encapsulate what the artist sees as the piece’s true value: “[I]f someone were to just replicate my piece move for move, but without any of the conversations or discussions that we had in rehearsals, . . . I would feel like it missed some core elements of the piece . . . .” Much of the work’s value is in how one explores the underlying ideas or questions, rather than just what results from that exploration. Every respondent said that fidelity to their process in reproducing a piece was more important than fidelity to the actual expression of the original performance. As one respondent elaborated, “I would be more flexible with how the output looked as long as I felt convinced [about] the spirit of the piece — [that] in recreating the work, they were asking similar questions . . . that I did.”
This blurs the traditional dichotomy to which copyright subscribes of a complete cleavage between idea and expression. In the abstract, it makes sense: J.D. Salinger can certainly copyright The Catcher in the Rye, but he cannot monopolize the concept of a bildungsroman. But many conceptual artists use intermediary devices — Sol Lewitt’s instruction-based installations, John Cage’s randomized choice in musical compositions, Trisha Brown’s choreographic inventions — to express certain ideas. Copyright protects only the expression, not the process used to get there. While the expressions are undoubtedly interesting, the work’s lasting contribution to the field is often the unique approach used. For respondents, creative control is a means of ensuring the integrity and fidelity of recreations of their work to that process, even if that leads to different expressions that copyright would not view as “copies.”
To be clear, postmodern artists do not expect or even want exclusive domain over their processes — they want further engagement with these choreographic devices. In the specific context of restaging their own work, choreographers desire creative control over the process to ensure fidelity to the original conception of the piece. This desire for fidelity is usually reciprocated by the restaging company, as they tend to seek not just permission, but also guidance and source material from the original choreographer.101 Outside of that context, postmodern choreographers want the field to continue evolving and view opportunities to engage with each other’s work as an integral part of that endeavor. When their work or processes are part of the broader artistic conversation, respondents seek only attribution, not control.
Steve Paxton pioneered the concept of contact improvisation (CI),102 a form of partnered spontaneity that “relies exclusively on the abilities of the dancers to remain in touch with their own and another’s body improvisationally.”103 Paxton was more interested “in seeing where the form would go” than retaining exclusive control,104 and so he welcomed the proliferation of CI around the world in different movement schools,105 choreography,106 and academia.107 While CI’s origins will forever be attributed to Paxton, the practice has taken on a life of its own in each artist’s unique interpretation and application of this movement exploration device. Similarly, every respondent was able to name historical and contemporary influences on their recent works, and most had a sense of pride or gratitude when they realized their influence on others. While respondents crave rightful attribution, they also find a sense of joy and accomplishment in putting something out into the zeitgeist that generates further creativity and conversation.
Copyright protections may even stymie some of those generative conversations. “Copying” in postmodern dance is often to interpret or critique art; respondents see the ability to copy and reference as essential to the exchange of ideas: “Copying . . . is a form of interpreting art. . . . [I]n the right contexts, I think it can make a lot of sense in creative output.”
For instance, former Martha Graham company dancer Richard Move’s drag performances as Martha Graham replicated her choreography exactly.108 But Move’s performance, transposing Graham’s choreography onto his body and his own histories, brought in commentary and remembrance of Graham’s later work, creating “a cross between an oracle-once-removed, a medium in a séance, and a hostess of lost histories.”109 Move’s performance is also an homage; he quite literally performs as Graham.110 Most respondents also doubt the ability of anyone to copy a piece exactly. Given the embodied and ephemeral nature of performance, a “copy” transposed onto another body, in another context, generates commentary and critique.
B. Moral Rights: Attribution and Integrity
As far back as Fuller v. Bemis,111 it was clear that theft of one’s choreography is more than a theft of economic opportunity. In her personal writings, Fuller “portray[ed] the theft of her choreography as the dispossession of her very personhood.”112 One respondent acknowledged that, given the starving-artist status of the concert dance industry, copying an entire piece of hers is not necessarily economically devastating. But the act of taking that work and divorcing it from the author is “like [if] you make a baby and [then] someone steals your baby.” This sentiment aligns closely with the rationale for moral rights, which some scholars have termed “the anti-copyright.”113
Rather than protecting a creator’s economic incentives as copyright does, moral rights are a legal set of “noneconomic, personality-rooted rights” that protect creators “because the work they create is an extension of their very personhood.”114 Because of this intimate connection between creator and creation, moral rights accord the author a right of attribution, otherwise known as a right of paternity.115 This provides the author rights of acknowledgement and rights to control others’ associations with the work.116 The other critical moral right is the right of integrity: the right of creative control over potential alterations of the work.117
Attribution and integrity rights more accurately capture what postmodern choreographers see as valuable about their own choreography. Acknowledgment is all that many choreographers crave when their work is clearly referenced or quoted in another’s piece. Integrity rights provide control over “alterations” of the work, rather than copyright’s narrow view of reproductions. For many postmodern choreographers’ works, it would be expected that different performances, even by the same company, would look different. Resetting a piece requires engaging in the same line of inquiry with different dancers, who have different bodies and histories. “The piece [has to] change because it’s different dancers. . . . [T]he structure, it would stay there. But the steps, some of the . . . transitions, will probably be different.” Postmodern choreographers care more about the ideas and approaches explored in their pieces than specific expressions, aligning with the broader concept of integrity rather than the focused protections of copyright infringement.
Choreographers already expect substantial creative control when another company or choreographer wants to restage their works, the dance world’s version of creating authorized copies. Creative control is usually welcomed by the receiving company. Even for a restaging that hews closely to the original piece’s expression, it’s not enough to look at a single video to recreate a performance. Restaging more commonly involves poring over multiple versions of the performance on video, analyzing writings and other materials from the rehearsal process, and leveraging knowledge of interpersonal dynamics within the original company to be able to accurately “dance” someone else’s “decisions” and be mindful of the choices made in the piece. Such a process is usually led by a trusted regisseur of the work — sometimes the choreographer herself, but often a rehearsal director or senior company member for more established choreographers. There is a commitment among the dancers involved to the integrity of the original piece; it is an opportunity to engage with a piece of dance history in addition to performance of a work.
Some scholars and dance artists have considered the value of expanding the protection of moral rights to choreography as well as other works,118 and the Copyright Office recently embarked on a comprehensive study of attribution and integrity rights in the United States.119 But these calls have been sounding for over forty years to no avail. The United States has long been hesitant to embrace moral rights;120 only upon requirement of the Berne Convention121 did the United States create a set of (incredibly circumscribed) moral rights for certain visual artists in 1990.122 Given the broad reach and control that moral rights can accord to artists, Congress is unlikely to expand these protections.
C. Not Worth the Squeeze: Practical Barriers to Enforcement of Copyright or Moral Rights
As one respondent put it, “suing won’t get anyone anywhere — everyone is poor.” With few exceptions, the meager revenue associated with the dance industry does not make copyright litigation an attractive prospect. Unless the party seeking copyright registration is one of a few behemoths, choreographers tend to lack the resources to seek copyright protections for their work consistently. And unless the infringing party is a similarly sized behemoth, there is little monetary incentive for the aggrieved choreographer to enforce those copyright protections.123 Consequently, the handful of cases that have invoked dance copyright protections are overwhelmingly matters of well-established artists — usually suits involving production companies,124 estates,125 and corporations.126 Recently, there has been a spate of lawsuits against Epic Games for their unsanctioned use of choreographers’ signature moves as “emotes,” virtual animations that users can buy for their avatars, in their popular videogame, Fortnite.127
There has not been a single choreographic copyright lawsuit since the Act’s revision that has concerned the question of copyright infringement by another dance artist, even though “the digitization of dance has increased both its availability and concerns about its ‘theft.’”128 Disputes about dance stealing among the rich and famous do occasionally enter the public discourse. Beyoncé’s alleged plagiarism of Anne Teresa De Keersmaeker’s choreography in the iconic Countdown music video generated controversy in the dance world.129 Similarly, the Los Angeles dance community was buzzing after well-known choreographer Jojo Gomez alleged that another dancer on Demi Lovato’s tour took credit for Gomez’s original choreography.130 Both instances involved high-profile artists in commercial contexts, but no explicit copyright claims were raised, and neither matter went to court. This is likely due to the hurdles that even well-resourced artists face in enforcing copyright protections: the requirement to register one’s works, which can be a higher bar than one may expect; the difficulty of proving infringement rather than independent parallel thought; and the unclear reach of copyright protections for choreography.131 It is not clear how one could win such a case of choreographic copyright infringement. The few that have tried were unsuccessful132 or settled out of court,133 leading to a dearth of case law on the subject.
Even if choreographers received moral rights over their work, they would still face many of these same practical barriers to identifying cases of infringement and bringing claims in court.134 Moral rights do align much more closely than copyright with the rights that choreographers already realize and practice — but that does not mean that either framework is the correct doctrinal solution for these choreographers.
IV. How Do Postmodern Choreographers Protect Their Work?
Choreographic copyright does not align with artists’ values about ownership and authorship, providing scant protection of what these choreographers find the most meaningful about their work. Yet, absent this legal protection, people continue to create postmodern works. This Part explores how this community normatively and legally protects the rights they perceive in their art beyond the copyright regime.
A. Plagiarism, Not Copying
Underlying the strong normative belief in attribution and integrity is a pervasive antiplagiarism norm. Respondents largely coalesced around the word “plagiarism” to most accurately describe instances of copying that they felt infringed on one’s sense of ownership. The key question is whether the potentially infringing party intended to pass off that work as their own. When works are of certain renown, copying necessarily becomes reference. It’s hard to “comprehend[] that somebody could successfully plagiarize a work like Revelations,” Alvin Ailey’s signature piece that traditionally ends company performances. This is a far cry from the “plagiarism” of copying someone’s work without reference or attribution, an action that one respondent called “a mortal dance sin.” For emerging or even mid-career choreographers, the implicit assumption that an audience would recognize incorporating portions of their work as reference does not apply.
If the intent is to comment or critique, even in a negative light, respondents were excited by the opportunity for engagement and generative conversation. Multiple respondents recall feeling torn about references to their work that felt derivative or too close for comfort; while they did not appreciate the lack of attribution, it was simultaneously fulfilling for others to find their works interesting enough to build upon. One respondent articulated the variety of concerns that fed into identifying plagiarism as akin to a formula:
[I]t feels like there’s some formula [for when copying infringes on a choreographer’s ownership] where one of the terms is: how visible and how well-known is the piece? And then there’s another term that’s like how long [is the segment being copied]? And then there’s another term that’s like how faithful is the recreation?
Much like the courts, who see the substantial similarity test for infringement as intensely “fact-driven and context-dependent,”135 choreographers are unable to articulate a bright-line rule for when copying, short of an entire piece, violates the norms around ownership of one’s work.
To err on the side of respect, artists tend to cite their sources, especially in the postmodern tradition in which reference and quotation are key ingredients in choreography. Multiple respondents liken the idea of referencing other works to writing a paper in an academic field: “I do think it’s important . . . for dance and dance makers to honor their past. You know, in writing, you honor your past, you cite your quotes, you are proud to . . . be part of the lineage of history.” Even if the reference is minimal or the influence may not be noticed by audiences, respondents tend to provide credit, often in programs or introductions of the piece. Although the boundaries around permissible borrowing of choreography or choreographic approaches seem hazy to outsiders, respondents affirm that these norms are well-followed within the community.
What happens if you transgress and plagiarize another’s work? Respondents vary on how effective they find enforcement of that norm. Detection is a necessary precondition for enforcement, and like in other fields, plagiarism is usually only detected by artists in the community, not by general audiences.136 But postmodern choreographers tend to go to each other’s shows with regularity: “We joke that we’re essentially passing the same ticket price back and forth for each other’s shows. You go to a dance concert in [the area] one weekend, and then they come to your show next month.” And it’s a “small community with big rumors.”
Dance thieves are primarily sanctioned socially — people talk, and more importantly, such work “wouldn’t have the respect of the community” or “is looked on with disdain . . . because it just means [that] the choreographer has not actually found their own style.” If it is a rip-off, “the community wouldn’t see it as artistically valuable.” Emerging artists see this reputational sanction as a serious threat: “[Y]ou also have to think about how much of getting a job in this industry has to do with social connections.” If you cross established artists or get a reputation for plagiarizing, “you will get blackballed in the community and not asked [back for] any further opportunities.”
More established respondents were more cynical about the actual repercussions dance thieves face. Frankly, “people forget” about these indiscretions once the gossip dies down. Several respondents said that they would refuse to engage with known plagiarists. These refusals may impact emerging artists, but the infrastructure of the dance industry insulates people who have already climbed up the ladder. Once an artist is secure in their position, reputational repercussions lose their sting as only a handful of powerful people could impact one’s job security at that point. In a reversal of the barriers to enforcing copyright against emerging artists, who tend to be judgment-proof due to their lack of economic resources and commercial reach, the more established choreographers are essentially judgment-proof when it comes to social sanctions due to their vast resources. This specific need for enforcement may be where copyright can play a role — if a work has crossed over from the concert circuit to commercial success, there may indeed be sufficient economic incentive to pursue and secure one’s formal intellectual property rights.
Choreographers view their own work and others’ as deeply deserving of respect and demonstrate that respect in the form of attribution to avoid the appearance of plagiarism. While the actual standard for plagiarism is difficult to articulate independent of the facts, much like a legal judgment of copyright infringement, artists have coalesced around an antiplagiarism norm in an effort to respect and acknowledge how their work builds on that of their predecessors as well as their colleagues.
B. Private Agreements to Enforce Public Norms
Choreographers already recognize and enforce these ownership rights amongst themselves through other areas of law — private law. Even for pieces not registered for copyright, artists engage in licensing agreements that prescribe detailed conditions for restaging a work. Licensing contracts from larger companies provide standard terms like duration of license, fees, nature of performances, and more.137 In addition, they set out standards for attribution, level of creative control over choreography, and often extend to costuming, music, and staging requirements.138 This level of control is welcomed by the company or group looking to restage those pieces; the restaging artist will proactively seek out creative input and control from the original choreographer.
This does not always recreate the original piece — it is far more important to retain fidelity to the process than to create a mechanical reproduction of the steps. While the Trisha Brown Dance Company offers licensing projects where the original choreography is preserved, it is known for its Reset Projects in which “participants first learn the exact sequences from an original Brown work, and then engage in Brown’s unique choreographic protocol to generate their own variation of the original choreography.”139 For the artists undergoing the Reset Project (or other equivalents), the value of the restaging effort comes from the deep engagement with these historical works.
Although licenses are common practice, they range widely in form, largely dependent on the resources in play for both parties. Established companies seeking commissions for restaging have a standardized process and terms, while emerging artists may engage in informal contracts like a “Word document . . . [with] like two sentences of what you’re agreeing to” or verbal agreements about attribution. The range of how these agreements can function, from the formal licensing contract to set a work on a renowned company to informal requests between emerging artists via text or email, provides the flexibility to meet artists where they are in terms of resources and renown.
While moral rights theoretically align with what choreographers view as the ideal in terms of ownership, choreographers have already found that private law can effectively fill the gap they experience over attribution and control for reproductions of their work. In addition to contracts and licensing, artists also create choreographic trusts (often upon their death) to maintain a higher level of control, attribution, and preservation of their works — even copyrighted ones — than copyright alone can provide.140
Conclusion
Frankly, copyright is not meant to serve the full spectrum of ownership interests that respondents advocate for or already recognize within their artistic communities. While many look to copyright as a private right over one’s authored work, copyright doctrine is intended to set economic incentives for optimal levels of creativity and innovation in a field. To do so, it must balance protections for individual work against the public benefit of free-flowing content in the public domain — and in fields that do not spawn economically beneficial pieces, real-world protections are slight.
Choreographers have historically advocated for stronger legal rights over their work, but it is not necessarily with an eye to economic protections. Concerns of attribution, integrity, and legacy motivate these calls to enshrine legal protections. But choreographers have already successfully sought refuge for these rights within their own community, using a combination of norms and private law to patch together a vision of ownership that aligns with the broader normative values that choreographers share about artistic integrity, plagiarism, and attribution.