805.5 (B) Social Dances, Simple Routines, and Other Uncopyrightable Movements
Congress expressly recognized choreography as one of the categories of copyrightable subject matter under Section 102 (A) (4) of the Copyright Act. The legislative history indicates that “the technical term ‘choreographic works,’ as used in the context of copyright, may refer both to the dance itself as the conception of its author to be performed for an audience, and to the graphic representation of the dance in the form of symbols or other writing from which it may be comprehended and performed.” COPYRIGHT OFFICE STUDY NO. 28, at 93. Although Congress did not define this “technical term” in the statute, it does not have the same meaning as “choreography,” which is often used as a noun or verb for any type of dance or artistic display, as in “The square dance caller provides the choreography that the dancers follow” or “The company staged a well-choreographed production of Richard III.”
When Congress extended federal copyright protection to choreography, it intended to protect expressive works of authorship, such as ballet or modern dance. However, Congress did not intend to protect all forms of dance or movement. The legislative history specifically states that “choreographic works do not include social dance steps and simple routines.” H.R. REP. NO. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. at 5667; S. REP. NO. 94-473, at 52 (1975).
Thus, the U.S. Copyright Office cannot register a claim to copyright in social dances or simple routines, because they do not constitute copyrightable subject matter. Likewise, the Office cannot register a claim to copyright in ordinary motor activities, functional physical movements, competitive maneuvers, feats of physical skill or dexterity, or the like, because such movements lack the necessary creative expression to constitute a work of original authorship. Congress gave federal courts the flexibility to interpret the scope of the existing subject matter categories, but only Congress has the authority to create entirely new categories of authorship. “If the federal courts do not have the authority to establish new categories of subject matter, it necessarily follows that the Office also has no such authority in the absence of any clear delegation of authority to the Register of Copyrights.” Registration of Claims to Copyright, 77 Fed. Reg. at 37,607.
The fact that a dance or movement may contain more than a trivial amount of original authorship is irrelevant to this determination. Social dances, simple routines, and other uncopyrightable movements are not “choreographic works” under Section 102 (A) (4) of the Copyright Act. As such, they cannot be registered, even if they contain a substantial amount of original, creative expression. For the same reason, the Office cannot register derivative social dances, derivative simple routines, or the like. A dance that is merely an adaptation of a social dance or simple routine is also considered a social dance or simple routine that does not qualify as a choreographic work under Section 102 (A) (4) of the Act.
The dividing line between copyrightable choreography and uncopyrightable dance is a continuum, rather than a bright line. At one extreme are ballets, modern dances, and other complex works that represent a related series of dance movements and patterns organized into a coherent compositional whole. At the other extreme are social dances, simple routines, and other uncopyrightable movements described in Sections 805.5 (B) (1) through 805.5 (B) (3) below. Many works fall somewhere in between.
The registration specialist will use objective criteria to determine whether a particular work falls on one side of the continuum or the other. The primary criteria that the specialist will consider are set forth in Section 805.2. The presence or absence of a particular element is not determinative. Instead, the specialist will consider the intrinsic nature of the work, including its individual elements as well as the work as a whole, to determine whether it is the type of dance that constitutes copyrightable subject matter under Section 102 (A) (4) of the Copyright Act.