Compendium of U.S. Copyright Practices, 3rd Edition

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805.4 (A) Copyrightable Subject Matter

805.4 (A) Copyrightable Subject Matter

As the Second Circuit observed in Horgan, “[d]ance is static and kinetic successions of bodily movement in certain rhythmic and spatial relationships,” while choreography is the composition and arrangement of “a related series of dance movements and patterns organized into a coherent whole.” 789 F.2d at 161 (quoting COMPENDIUM (SECOND) §§ 450.01, 450.03 (A)).

When evaluating a claim to copyright in choreography, the registration specialist will use objective criteria to determine whether the work is a dance that constitutes copyrightable subject matter under Section 102 (A) (4) of the Copyright Act. In making this determination, the specialist will focus on the intrinsic nature of the work, rather than the specific performance that is reflected in the deposit copy(ies). The primary criteria that the specialist will consider are set forth in Section 805.2. These elements are found in most choreographic works, although the presence or absence of a particular element may not be determinative.

When Congress extended copyright protection to choreographic works, it did not intend to protect all forms of dance or movement. Instead, it used the term “choreographic work” in contrast to non-compositional dances, such as social dances or simple dance routines. Examples of dances and bodily movements that do not constitute copyrightable subject matter are discussed in Section 805.5 (B) below.

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