806.4 (D) Pantomimes That Incorporate Uncopyrightable Movements, Gestures, and Facial Expressions
As discussed in Section 806.5, stock gestures, common techniques, ordinary motor activities, and other uncopyrightable movements cannot be registered as separate and distinct works of authorship, even if they contain a substantial amount of creative expression. Nevertheless, uncopyrightable movements may be used as the building blocks for a pantomime, in much the same way that notes and short musical phrases provide the basic material for a composer. Pantomimes that incorporate stock gestures, ordinary motor activities, or even athletic exercises may be protected by copyright, provided that the work as a whole contains a sufficient amount of original authorship. See Teller v. Dogge, 110 U.S.P.Q.2d 1302, 1306 (D. Nev. 2013) (“While [defendant] is correct that magic tricks are not copyrightable,… the mere fact that a dramatic work or pantomime includes a magic trick, or even that a particular illusion is its central feature does not render it devoid of copyright protection”).
• Irwin Williams created a complex pantomime titled, Waiting for Sam. At one point in the production the performer pretends to walk down a flight of stairs while using a partition to conceal his movements from the audience. While the overall production could be registered as a pantomime, the U.S. Copyright Office would reject a claim limited to this standard technique.