Dancing with Rights: Analyzing Copyright for Choreographic Works in the United States

July 22, 2024

By Atreya Mathur and Beverly Osazuwa

Dance has always been a significant part of human expression, and the expansion of the 1976 Copyright Act was the first U.S. law to make choreography copyrightable.^[1] With the rise of MTV and music videos in the eighties, dance routines like those by Michael Peters (“Thriller”) and Anthony Thomas (“Rhythm Nation”) saw mass popularization. These iconic dances took on a life of their own, becoming immediately recognizable and repeated on TV shows, movies, and viral videos. Other choreographers such as Brian Friedman (“I’m a Slave 4 U”), Laurieann Gibson (“Bad Romance”), JaQuel Knight (“Single Ladies”), and Sean Bankhead (“On My Momma”) have seen similar popularity in their creations. With the phenomena of social media, creatives are seeing their creations shared rapidly around the world through platforms like Tiktok, and may want to protect their works against copied moves and uncredited (or uncompensated) recreations. While the digital age has taken choreography to new heights, it also presents new (and old) legal challenges.

In July 2024, the Center for Art Law met with the Korea Copyright Commission to discuss copyright protection for choreographers in the United States and the challenges related to enforcement. The dialogue highlighted the evolving landscape of intellectual property rights in dance choreography, emphasizing both the opportunities and complexities faced by choreographers seeking to protect their creative works. Discussions also addressed the unique nature of choreographic copyright, where the line between copyrightable expression and unprotectable elements like basic movements or social dances must be carefully navigated. The Center for Art Law also shared research regarding strategies for choreographers to assert their rights effectively, including the importance of detailed documentation, collaboration with social media houses and the advantages of timely registration to enhance legal recourse against infringement. This article highlights some of the research conducted by the Center on copyright for choreography.

Understanding Choreographic Copyright

In the United States, dance choreography is protected under federal law as “pantomime and choreographic works” as defined by the Copyright Act of 1976.^[2] To qualify for copyright protection, choreography must be an original expression fixed in a tangible medium of expression, such as recorded video or documented in written form.^[3] While copyright protection is automatic upon creation, registration with the U.S. Copyright Office is essential for gaining legal advantages, including the ability to sue for infringement, claim statutory damages, and recover attorney’s fees.

Choreographers are encouraged to document their choreography meticulously through video recordings, notes, photographs, diagrams, or dance notations. These materials serve as evidence of the work’s creation date and originality, bolstering claims in case of legal disputes. However, it’s important to note that not all dance movements qualify for copyright protection; common gestures, social dances, exercise routines, and athletic movements are generally excluded.^[4] For example, yoga poses and sequences, and celebratory gestures are not eligible for copyright.^[5] The Copyright Office identifies key elements of copyrightable choreography, such as rhythmic movements in a defined spatial environment, coherent and expressive patterns, thematic expression through movement, and performances with musical or textual accompaniment.^[6]

While moral rights, such as attribution and integrity, are not protected under U.S. copyright law for choreographers, registration provides avenues to protect these rights through licensing agreements. Registration allows choreographers to “exploit the exclusive rights granted under the act to protect some moral rights within a licensing agreement for the performance of the work.”^[7] The Supreme Court’s 2019 decision in Fourth Estate v. Wall-Street.com further affirmed that a person cannot sue for copyright infringement until there exists an approved copyright for the work by the Copyright Office.^[8] However, upon registration, a copyright owner may file suit for infringement that occurred before and after registration.^[9] One example of the effect of this decision is when rapper Rapper Terrence Ferguson, (“2 Milly”) dropped his lawsuit against Epic Games, the creators of Fortnite, for inputting Ferguson’s dance ‘The Milly Rock’ into the game without his permission.^[10] Fortnite features over 100 dances, or ‘emotes’ that players can purchase for their characters, bringing into millions of dollars to the game creators.^[11] Unfortunately, 2 Milly had not registered the work with the Copyright Office and therefore had no legal recourse for copyright infringement.^[12]

Like 2Milly, the Fresh Prince of Bel-Air star Alfonso Ribeiro also filed a lawsuit against the gaming studio for copying ‘the Carlton Dance’ in Fortnite. However upon filing for a registration with the Copyright Office, the actor received a letter from the office denying his registration. With its combination of three movies, it was deemed a “simple dance routine” and therefore uncopyrightable.^[13] The letter reinforced that choreography is not synonymous with dance, highlighting the tension in how choreography is defined. Additionally, the fact that dance was created in the context of a television show could arise questions of authorship and employment.

Ownership and Authorship

Determining copyright ownership in choreographic works involves understanding who holds the rights to the creative output and under what conditions these rights can be transferred or shared.^[14] Copyright ownership in choreographic works generally belongs to the creator or creators of the work.^[15] Section 201 of the Copyright Act establishes rules for ownership rights, and the creator of choreography is typically the owner of the copyright.^[16] In the context of choreography, this means the choreographer who conceives and sets the dance is typically the owner of the copyright. However, the situation can become complex when multiple parties are involved. For instance, consider a scenario where a famous choreographer creates a dance piece for a major ballet company. If the choreographer independently creates the work without any prior contractual agreements specifying otherwise, they retain the copyright to the choreographic work. This ownership grants the choreographer exclusive rights to reproduce, distribute, perform, and display the work.

Joint authorship and co-authorship: The Joint Authorship Doctrine pertains to the shared creation and ownership of a single work by multiple individuals.^[17] This is particularly relevant in the context of choreographic works, where collaboration is common. Joint authorship occurs when two or more individuals collaborate with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.^[18] Each joint author in this case must contribute a substantial and copyrightable element to the final work.^[19] Joint authors generally share equal rights in the copyright, regardless of the proportion of their contributions, unless agreed upon otherwise by contract.^[20] To qualify as joint authors, the collaborators must meet certain criteria:

• Intent to Create a Joint Work: The collaborators must intend, at the time of creation, to combine their contributions into a single work.^[21] This intention can be demonstrated through written agreements, oral understandings, or the nature of the collaboration.
• Copyrightable Contributions: Each collaborator must contribute original, creative elements that are eligible for copyright protection.^[22] Mere ideas or unprotectable elements (such as basic movements or dance steps) do not qualify.

Employer/Employee and Work for Hire: In some cases, choreographic works are created under circumstances that alter the default copyright ownership rules. When a choreographer creates a work as an employee within the scope of their employment, the copyright typically belongs to the employer.^[23] This is known as the “work for hire” doctrine. For example, if a choreographer is employed by a ballet company and creates a dance piece as part of the job duties, the copyright would belong to the ballet company, not the choreographer. The same principle applies to works created under a commission agreement where the terms explicitly state that the work is a “work for hire.”^[24]

Role of Collaborative Agreements and Contracts

To navigate the complexities of copyright ownership in collaborative environments, choreographers often rely on collaborative agreements and contracts.^[25] These agreements outline the contributions of each party and specify the terms of copyright ownership and usage rights. Contracts play a crucial role in defining and protecting the rights of choreographers and collaborators. A well-drafted contract can prevent disputes and ensure that all parties have a clear understanding of their rights and obligations. Collaborative agreements should address key aspects such as the scope of the work, the duration of the copyright, the division of royalties, and how decisions regarding the work will be made.^[26]

Licencing agreements are also useful for choreographic works. A prominent feature in the music industry, licencing is when a copyright owner has authorized or given permission for their work to be distributed or used by another. These agreements specify the scope of use, duration, and any compensation. For dance, a license may be obtained through theatre rights licensing agencies, individual choreographers and choreographers’ trusts, and choreography licensing companies.^[27]

Typical Clauses in Choreography Contracts Regarding Copyright:

1. Ownership Clause: This clause specifies who will own the copyright to the choreographic work. It can state whether the choreographer retains full ownership or if the work is considered a “work for hire,” thereby transferring ownership to the employer or commissioner.
   • Example: “The choreographer retains exclusive ownership of the copyright to the choreographic work. The ballet company is granted a non-exclusive license to perform the work for the duration of this contract.”
   • Implication: This clause ensures that the choreographer maintains control over their creative work while allowing the company to perform it. If the work were a “work for hire,” the company would own the copyright, limiting the choreographer’s control over future uses.
2. Grant of Rights Clause: This clause outlines the specific rights being granted to the other party, such as performance rights, recording rights, or distribution rights. It can also include limitations on these rights.
   • Example: “The choreographer grants the ballet company the exclusive right to perform the choreographic work for a period of two years. Any recordings of the performances require separate written consent from the choreographer.”
   • Implication: This clause allows the choreographer to control how their work is used and ensures they have a say in recordings and other derivative uses, preserving their artistic integrity and potential revenue streams.
3. Credit and Attribution Clause: This clause ensures that the choreographer receives proper credit for their work in all public performances, recordings, and related materials.
   • Example: “The ballet company agrees to credit the choreographer in all promotional materials, programs, and recordings as follows: ‘Choreography by the Artist.'”
   • Implication: Proper attribution is crucial for the choreographer’s professional reputation and can influence future opportunities. This clause guarantees that the choreographer’s contributions are publicly acknowledged.
4. Royalty and Compensation Clause: This clause details how the choreographer will be compensated, including upfront fees, royalties from performances, and any additional payments for recordings or adaptations.
   • Example: “The choreographer will receive a fee of $5,000 for the creation of the choreographic work, plus 5% of gross ticket sales for each performance. Additional compensation for recordings will be negotiated separately for each licensed use.”
   • Implication: Clear terms for compensation ensure that the choreographer is fairly remunerated for their work and its ongoing use, providing financial security and recognition of their creative contributions.

Understanding the mechanics of choreographic copyright, including ownership, joint authorship, and the role of contracts, is essential for choreographers to protect their creative rights. By carefully negotiating and drafting agreements, choreographers can ensure they maintain control over their works, receive fair compensation, and achieve proper recognition for their contributions to the art of dance.

Challenges in Protecting Choreographic Works

Choreographic copyright presents distinctive challenges that stem from the dynamic nature of dance as a creative medium and the evolving landscape of digital dissemination. One of the primary challenges lies in the determination of what constitutes copyrightable choreography. While the Copyright Act of 1976 provides protection for original works fixed in a tangible medium of expression, choreographers often face difficulty in distinguishing their creative expression from basic movements, gestures, or social dances that do not qualify for copyright protection. This ambiguity can complicate efforts to assert and defend copyright claims, requiring choreographers to meticulously document their works, which can be tedious and demonstrate the originality and artistic merit of their choreography.

With the rise of social media in the digital age, creatives are seeing their creations shared rapidly around the world through platforms like Tiktok. The viral nature of dance on social media platforms poses significant challenges to copyright enforcement. Dance routines that go viral often transcend borders and cultures rapidly, leading to widespread adaptation and unauthorized use. The speed and scale of digital dissemination can outpace traditional legal mechanisms, making it challenging for choreographers to monitor and control the dissemination of their works effectively. This phenomenon raises questions about the adequacy of current copyright laws in addressing the global reach and instantaneous nature of digital platforms.

Take for example, the widely popular dance to Megan thee Stallion’s ‘Savage. Choreographed by Keara Wilson, the TikTok creator in March 2020, millions of people were performing her dance, including Megan Thee Stallion herself. Following its success, Jimmy Fallon invited TikTok influencer Addison Rae to The Tonight Show , where she performed various dances originating from Black creators, like Wilson, but were not acknowledged on the show.^[28] This brought much backlash, and he later invited the Black creators virtually to perform their dances, but it also sparked a large movement to advance the rights of copyrights, especially for Black creators.

The enforcement of choreographic copyright faces practical hurdles in identifying and proving instances of infringement. Unlike tangible works like books or paintings, choreography is inherently ephemeral and performance-based, making it difficult to establish concrete evidence of unauthorized use or adaptation. This challenge is compounded by the decentralized nature of social media, where attribution and ownership can be easily obscured or overlooked amid the vast volume of user-generated content.

Still, choreographers have a variety of strategies at their disposal to manage their choreography. Famed choreographer JaQuel Knight has made a significant leap in his career and movement for choreographers’ rights with the launch of Knight Choreography and Music Publishing Inc. The company is responsible for managing the rights to his dance moves, akin to how music publishers safeguard the intellectual property of their clients. Knight recently secured copyright to his choreography of “Single Ladies” and “WAP”. In 2021, his company collaborated with Logitech to help 10 BIPOC creators gain copyrights for their choreography.^[29]

Additionally, many are embracing social media to showcase their work and reach a wider audience, encouraging proper attribution (e.g., tagging the original creator) to maintain recognition. Clear licensing agreements and partnerships with social media platforms can help protect their choreography from misuse. Some creators choose to use Creative Commons licenses to allow certain uses while retaining control, fostering a collaborative community. Utilizing technology and platform-specific tools, such as TikTok’s Creator Fund or YouTube’s Content ID, can also help choreographers monetize and manage the distribution of their content, ensuring that their creative work is properly credited and protected. Another strategy for protecting choreographic works, although not legally required, is by placing a watermark or copyright notice on the recorded work as a deterrent to potential infringers and a way to inform others of the work’s protected status. The notice should include the copyright symbol (©), the year of creation, and the name of the copyright owner (e.g., © 2024 [Choreographer’s Name]). Clearly define and document the contributions of all collaborators.

Documentation and contracts in general could assist in mitigating some of the challenges related to choreographic copyright. Thorough documentation, such as video recordings, notes, diagrams, and dance notations, plays a crucial role in establishing the originality and creation date of choreographic works. By documenting their choreography, choreographers can provide tangible evidence of their creative process and artistic expression, which is instrumental in asserting copyright claims and defending against infringement. Additionally, contracts enable choreographers to formalize their rights, clarify ownership, and outline usage permissions and restrictions. These legal agreements define the terms of collaboration, specify royalty arrangements, and establish mechanisms for resolving disputes. By setting clear expectations and obligations among stakeholders, contracts reduce ambiguity, promote compliance with copyright laws, and provide a structured framework for managing and protecting choreographic works in diverse creative and commercial contexts.

Notable Legal Cases in the United States

The intersection of choreography and copyright law has been a contentious and evolving field, with several landmark cases shaping the legal landscape and influencing the way choreographers protect their creative works. These cases have set important precedents regarding the scope of protection and determinations that define ‘choreographic works’. This history of dance in the law points to broader questions of how courts engage with any artistic and creative venture, and especially those that are less inherently fixed to tangible mediums.

One of the earliest cases to litigate on the grounds of copyright infringement for a choreographic work was Horgan v. Macmillan, Inc. (1986). In this case, Barbara Horgan, the holder of ballet choreographer George Balanchine’s estate, sued Macmillan Publishers for using 60 photographs depicting Balanchine’s performance of the ballet in their book, The Nutcracker: A Story and Ballet. The District Court for the Southern District of New York initially ruled in favor of the defendants, stating that Balanchine’s choreography could not be recreated solely from pictures. However, on appeal to the Second Circuit, the decision was reversed, emphasizing that infringement should be determined by whether the photographs were substantially similar to the ballet.^[30] This case highlighted that works of different mediums could still qualify as infringement and reinforced the importance of protecting choreographic works.

Another notable case that had significant implications for choreographers’ rights was Martha Graham School v. Martha Graham Center (2002). This case revolved around the question of whether Martha Graham, an acclaimed dancer and choreographer, owned copyright in the dances she created while employed by the Martha Graham Center of Contemporary Dance Inc. The court ultimately awarded the defendants copyright in most of Graham’s work, concluding that many of the dances were considered works for hire.^[31] This case underscored the importance of clarifying ownership rights in choreographic works, especially when created within the scope of employment.

Since its inception in 2018, Fortnite and its animated dances have been in many news cycles, with dance creators claiming infringement of popular routines. Following the lawsuits of 2Milly, Alfonso Ribeiro, and the Backpack Kid, in the 2023 case, Hanagami v. Epic Games, Inc., the dance industry saw a major win against the gaming studio.

Choreographer Kyle Hanagami sued Epic Games, for allegedly infringing his copyright by copying and selling his registered choreographic work. The court initially dismissed the claim, stating that individual poses in choreography are not protected under the Copyright Act. However, on appeal, 9th Circuit reserved the decision,citing an error in the district court’s application of the test for substantial similarity wherein choreography was reduced to pose.^[32] The appeals court said,”Reducing choreography to ‘poses’ would be akin to reducing music to just ‘notes’”.^[33] A new trial was set for 2024, but the parties were able to reach an agreement and settle the dispute.^[34] Even so, the reversal highlights the tensions courts face in defining choreography, and may signal a shift in the legal capabilities for choreographers.

These major cases have highlighted the complexities and legal challenges faced by choreographers in protecting their creative works. While there have been important developments in recognizing choreographic works as copyrightable material, more clarity and guidance are needed in defining the scope of protection for choreographers. Moving forward, it is essential for both choreographers and the legal community to continue to advocate for and uphold the rights of artists in protecting their creations.

Collective Management Organizations

Collective Management Organizations (CMOs) play a crucial role in administering and licensing copyrights on behalf of creators, including choreographers, around the world. These organizations manage the rights of multiple rights holders, negotiate licenses, collect royalties, and enforce copyrights. However, the landscape of CMOs for choreographic works varies significantly between different countries, highlighting both successes and challenges in their effectiveness. Many European countries have well-established CMOs dedicated to managing the rights of choreographers and other performing artists. Organizations like the Société des Auteurs et Compositeurs Dramatiques (SACD) in France provide comprehensive support in licensing and royalty collection for choreographic works. The U.S. does not have dedicated CMOs specifically for choreographic works comparable to those in Europe. Instead, performing rights organizations (PROs) like ASCAP (American Society of Composers, Authors, and Publishers) and BMI (Broadcast Music, Inc.) primarily focus on music composition and performance rights.

Choreographers in the U.S. often manage their rights individually or through specialized legal representation, which can be complex and resource-intensive as discussed above. Despite the current landscape, there are prospects and potential benefits for establishing dedicated CMOs for choreographic works in the U.S. A dedicated CMO could simplify the process of licensing choreographic works for public performance, ensuring that choreographers receive fair compensation more efficiently as well as advocate for legislative changes and policy initiatives that enhance copyright protection for choreographers,

Conclusion: The Future of Choreographic Copyright

The landscape of choreographic copyright presents both opportunities and challenges for dancers, choreographers, and legal practitioners. From defining copyrightable choreography to the rapid dissemination of dance through social media platforms, the journey of protecting and enforcing rights is nuanced and complex. Contracts play a pivotal role in the management and assertion of choreographic copyrights. These legal agreements delineate the rights and responsibilities of choreographers, performers, and other stakeholders involved in the creation and dissemination of dance works. By specifying terms such as ownership, licensing arrangements, attribution requirements, and royalty distribution, contracts provide clarity and protection in an often complex creative ecosystem. Furthermore, contracts serve as crucial tools for resolving disputes and enforcing rights, offering choreographers a legal framework to uphold their creative vision and professional integrity. The evolving role of CMOs also presents a promising avenue for improving the management and enforcement of choreographic copyrights. Drawing insights from successful models abroad, there is potential for dedicated CMOs in the U.S. to streamline licensing, enhance royalty collection, and advocate for legislative reforms that better serve choreographers.

Looking ahead, the evolution of digital platforms and the global reach of social media present new challenges and opportunities for choreographers to assert their rights effectively. As these changes are navigated, education and advocacy will remain paramount in empowering choreographers to negotiate fair and equitable contracts, adapt to technological advancements, and protect their creative contributions in a rapidly evolving artistic landscape.

Additional Readings

• Sean M. Callagy, Patrick Derocher, & Zachary A. Nemirovsky, Hanagami v. Epic Games: The Ninth Circuit Clarifies The Standard for Infringement of Choreographic Works, Arnold & Porter (November 3 2023).
• Ali Johnson, Copyrighting TikTok Dances: Choreography in the Internet Age, 96 Wash. L. Rev. 1225 (2021).
• Alex Avakiantz, Stealing Swagger: NFL End Zone Celebrations and Fortnite’s Fortune, 94 Wash. L. Rev. 453 (2019).
• Stephen Wolfson, Is that TikTok dance meme copyrighted? It’s complicated, UPenn Libraries (November 29, 2023).
• Ari Shapiro, Jason Fuller, & Sarah Handel, He Choreographed ‘Single Ladies’ And ‘WAP.’ Now He’s Got A Bigger Mission, NPR (November 16 2020).

About the Authors

Atreya Mathur is the Director of Legal Research at the Center for Art Law.

Beverly Osazuwa is a rising third-year law student at the McGill University Faculty of Law. Her passion for art and cultural heritage law is born out of her Nigerian (Edo) heritage. Prior to her legal studies, she completed a Master of Arts in Political and Legal Thought at Queen’s University and obtained a Bachelor of Humanities from Carleton University.

Select Sources:

1. Renowned choreography, Hanya Holm, was the first person to register a claim to copyright a choreographic work in 1952, however the work, choreography for the Broadway musical Kiss Me Kate, was registered as a drama. ↑
2. 17 U.S. Code § 102 (a(4)) ↑
3. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991). ↑
4. Copyright Registration of Choreography and Pantomime, United States Copyright Office, Circular 52 (October 2022); Marc D. Ostrow and Ellie Sanders, Copyrighting and Licensing Choreography, Romano Law, (2024); See generally, Tracy Anderson Mind and Body, LLC, et al. v. Roup, No. CV 22-4735-RSWL-Ex (C.D. Cal. Dec. 12, 2022) ↑
5. Bikram’s Yoga College of India v. Evolation Yoga, 803 F.3d 1032 (9th Cir. 2015). ↑
6. Copyright Registration of Choreography and Pantomime, United States Copyright Office, Circular 52 (October 2022). ↑
7. Michelle Knight, Choreography and Copyright: A Complex Pas de Deux, Michigan Bar Journal (September 2021). ↑
8. Fourth Estate Public Corp v. Wall-Street. com, LLC, 139 S. Ct. 881, 586 U.S., 203 L. Ed. 2d 147 (2019). ↑
9. Id. ↑
10. Sam Desatoff, Rapper 2 Milly Srops Lawsuit Against Epic After Supreme Court Ruling, Yahoo! Finance (March 8 2019). ↑
11. Caitlin O’Kane, U.S. Copyright Office says Alfonso Ribeiro can’t register his famed “Carlton” dance, CBS News (February 15 2019). ↑
12. Elijah Hack, Milly Rocking through Copyright Law: Why the Law Should Expand to Recognize Dance Moves as a Protected Category, 88 2 U Cin L. R. 837 (2020). ↑
13. Copy of E-File Correspondence SR 1-722601329O, Copyright Office, (January 22 2019). ↑
14. See 17 U.S.C. § 201(a). ↑
15. Id. ↑
16. Id. ↑
17. See 17 U.S.C. § 201(a) and 17 U.S.C. § 101 ↑
18. Id. ↑
19. See Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991) and Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000) ↑
20. Id. ↑
21. Id. ↑
22. Id. ↑
23. See 17 U.S.C. § 201 ↑
24. Id. ↑
25. See Edward Ficklin, A Roadmap for Your Journey: Collaboration Agreements, New Music USA (Jan. 25, 2006) available at https://newmusicusa.org/nmbx/a-roadmap-for-your-journey-collaboration-agreements/ ↑
26. Id. ↑
27. Marc D. Ostrow and Ellie Sanders, Copyrighting and Licensing Choreography, Romano Law, (2024). ↑
28. Margaret Fuhrer, JaQuel Knight: Changing the Game, From Choreography to Copyright, Dance Magazine, (January 22 2022). ↑
29. KC Ifeayni, Will Dancers in the Digital Age Ever be Able to Protect Their Moves?, Fast Company, (March 10 2022). ↑
30. Horgan v. Macmillan, Inc., 789 F.2d 157 (2d Cir. 1986). ↑
31. Martha Graham School v. Martha Graham Center, 224 F. Supp. 2d 567 (S.D.N.Y. 2002); Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624 (2d Cir. 2004). ↑
32. Hanagami v. Epic Games, Inc., 85 F.4th 931 (9th Cir. 2023). ↑
33. Id. ↑
34. European Innovation Council and SMEs Executive Agency, “Epic Games Settles Fortnite Dance Copyright Dispute”, European Commission (February 23 2024). ↑