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DANCING AROUND THE ISSUE OF COPYRIGHT OF CHOREOGRAPHIC WORKS

By Merlyne Jean-Louis

Identical twins Laurent and Larry Bourgeois (known professionally as Les Twins), who are currently touring with Beyonce Knowles, are two of new style/studio hip-hop dance's rising stars. In 2010, on the San Diego leg of the World of Dance Tour, the brothers performed an eight minute self-choreographed routine that displayed their remarkable technical ability and quirky personalities. (See http://www.youtube.com/watch?v=_XLGYxeL1iQ.) In June 2011, Fox broadcasted a portion of the audition piece of D*Day, an Atlanta hip-hop dance duo, on the dance competition "So You Think You Can Dance." For one minute, practically step for step, D*Day performed a sequence from Les Twin's routine. As a result, judges allowed D*Day to proceed to the next stage of the competition. Some of Les Twins' outraged fans posted on YouTube videos that compared both routines to ensure that the "biters" did not become finalists on the show. (See http://www.youtube.com/watch?v=3s1doSilyQc.) If Les Twins desired to do something about this controversy, they would have a powerful weapon in their artillery: copyright.

Note: Because the twins are from France, they would probably choose to enforce their copyright under French Law or the Berne Convention. To simplify the legal analysis, I use American law.


Requirements of Copyright Protection for Choreographic Works

To qualify for copyright protection under the Copyright Act of 1976, a choreographer must satisfy three requirements. First, a choreographer must create a choreographic work. Although the 1976 Act defines the majority of copyrightable subject matter, the statute does not define the term choreographic works. However, the U.S. Copyright Office provides a standard definition for the term choreography ("the composition and arrangement of dance movements and patterns, and is usually intended to be accompanied by music") and dance ("static and kinetic successions of bodily movement in certain rhythmic and spatial relationships"). (Compendium of Copyright Practices ("Compendium II") §§ 450, 450.01 (1984).) Although Compendium II prohibits the copyrighting of dance steps and simple routines, such as the basic waltz step, the manual permits copyright registration of dances that incorporate of improvisation, which is relevant to many forms of hip-hop dance. Given these provisions, even though it contains improvised moves, the Les Twins' piece does constitute a choreographic work.

Second, the choreographic work must also qualify as an "original work[] of authorship." (Copyright Act of 1976, 17 U.S.C. § 102(a) (2010).) Today, a work is deemed to be original if it is "independently created by the author [and if] it possesses at least some minimal degree of creativity." (Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).) A choreographic work can be deemed to be original if similarity to another piece is "fortuitous [and] not the result of [deliberate] copying." (Id.) Thus, because the twins created the work and it is creative, the Les Twins piece is original.

Third, the choreographic work must be "fixed in any tangible medium of expression" in a manner that it "can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (17 U.S.C. § 102(a).) Currently three forms of fixation for choreography satisfy the Act's requirement: video recording, notation, and computer technology. As the Les Twins' piece was recorded and posted on YouTube by Yak Films, the work was fixated. Thus, assuming that the Bourgeois brothers 1) jointly claim copyright of the piece and 2) do not encounter work for hire issues, Les Twins own the copyright of the World of Tour piece under American law.

Potential Claims of Les Twins

As copyright protection provides the holder with a bundle of exclusive rights, Les Twins could have three major claims. First, the brothers could sue D*Day for infringing upon their right to perform, because D*Day performed most of Les Twins' piece in front of judges and other dancers in Atlanta's Fox Theater. (See 17 U.S.C. §§ 101 (defining public performance), 106(4) (enumerating exclusive right).) Second, because D*Day used dance moves that differed from those used in the Les Twins' piece, the Bourgeois brothers could claim that D*Day created a derivative work of their piece. (See 17 U.S.C. § 106(2).) Finally, Les Twins could sue Fox Television for transmitting the infringing D*Day piece to the American audiences via television and the Internet. (See 17 U.S.C. § 101.)

Potential Defenses of D*Day and Fox

D*Day and Fox could have some potential defenses to such a lawsuit. D*Day could claim that use of the Les Twins piece constituted fair use, because the members were somehow commenting on the piece or teaching the judges about new style/studio hip-hop dance. Balancing the four factor test of fair use, this defense would probably fail, however, because D*Day used a substantial portion of the Les Twin piece and used it for a commercial purpose (to audition for a show on which they could ultimately win $250,000). (See 17 U.S.C. 107.) With respect to the second claim, although D*Day could claim that the piece was sufficiently original and unlike that of Les Twins', this claim would also probably fail because D*Day stated that the piece was a tribute to and inspired by Les Twins. Finally, with respect to Les Twins' third claim, Fox could state that the piece was not transmitted over the Internet, because a viewer would have to take proactive steps to download and view the video of the show that displayed the D*Day audition piece. This defense could survive.

The Implications of a Suit by Les Twins

Although Les Twins can benefit from copyright protection of their works, they have chosen not to enforce their exclusive rights. This is most likely because of the dance culture: choreographers are honored and feel respected when others perform their pieces. According to D*Day, Les Twins told the group not to worry about the negative feedback from Les Twins' fans and wished them luck in the next stage of the dance competition. When Les Twins were asked about the D*Day incident by a dance magazine, Les Twins avoided answering the question. They do not even realize that Fox Television, whose legal department ensures that it secures all licenses for the music used on "So You Think You Can Dance" to avoid lawsuits, is not concerned about a suit from choreographers whose works they transmit on television.

Thus, my hypothetical suit will not occur. As evidenced by the action of the fans, most members of the hip-hop dance community may not even know about copyright protection. Until dance's most recognized choreographers start to enforce their copyright, all choreographers (especially the average, less known choreographers) will not be able to fulfill their earning potential.

The State of Copyright Protection for Choreographic Works in General

Using copyright law is an excellent tool because it assists most who devote their time to creating art to reap the financial benefits of their works. While copyright protection can serve well other artistic industries, the law as it stands does not help most choreographers. In essence, average choreographers encounter hurdles from the moment they attempt to secure copyright protection to when they file infringement suits because of the lack of clear standards from the judiciary as to the boundaries of their copyrights.

How is the state of copyright protection and choreography? Currently, the two are not dancing in unison.

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