805.3 (C) Improvisation
The U.S. Copyright Office may register a choreographic work if the work has been fixed in a visually perceptible form that 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. It is not possible to copyright an improvised dance if the improvisation has not been fixed in a tangible medium of expression. See 17 U.S.C. § 102 (A). For example, the Office may refuse to register a work that simply directs the performer to improvise a dance based on a particular theme or otherwise does not illustrate, depict, or describe the dancers’ specific movements. See COPYRIGHT OFFICE STUDY NO. 28, at 102-03 (“It is doubtful, at best, whether the Federal statute could extend copyright protection to a work presented only in a performance and not recorded in some tangible form of ‘writing.'”).