The borders of Terpsichore (updated)

My über-sharp friend Oliver Herzfeld, moving up in the world, has written an article in Forbes magazine on a recent Copyright Office policy statement that, as he puts it, “revises, and to a certain extent reverses, its prior position regarding the protection of compilations.”  Oliver sums up the changes.  Here’s, via excerpts, a summary of the summary:

The U.S. Copyright Act defines a compilation as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” The preexisting materials may be items that are independently uncopyrightable such as facts, figures, data or processes (since the intent of copyright law is to protect creative expression but not raw information by itself). The key is that the selection, coordination and arrangement of the materials must express a minimum amount of originality and creativity such that the resulting work is copyrightable as a whole. . . .

Works of authorship that can be protected by U.S. copyright law are currently limited to the following eight established categories.  .  .  The categories are non-exclusive, but only the U.S. Congress may create new categories. Congress did not delegate that authority to the courts or the Copyright Office.

Although a compilation may be based on the selection, coordination or arrangement of uncopyrightable elements (such as facts or data), must those elements relate to the foregoing categories of authorship or could they relate to other categories? In other words, could the selection, coordination or arrangement of uncopyrightable subject matter constitute a protectable compilation? After a lengthy analysis, the Copyright Office concludes that to be copyrightable, a compilation must relate to one of the eight established categories. So a collection of 100 rocks would not be protected by copyright since rocks are not protectable subject matter. However, a list of the names of an author’s 100 favorite rocks would be a protectable compilation since such a list may be considered a literary work.

Applying these principles, the Copyright Office determines that yoga poses, exercise routines and social dance moves do not fall within the congressionally-established categories of authorship.  . . .

Depressing… all the decades of work I put into the unique choreographic creations of the Ron Coleman Dancers!  I wouldn’t say too much about my fancy footwork, but they don’t call me LIKELIHOOD OF CONFUSION for nothing, believe me.

What exactly is the link between dance steps and the like and this Copyright Office determination regarding compilations of this nature? It isn’t immediately obvious; you’d think that the question is whether or not such works of creativity are copyrightable subject matter or not.  The core of the matter is this sentence from Oliver’s article:  “[C]ould the selection, coordination or arrangement of uncopyrightable subject matter constitute a protectable compilation?”  Thus, as the new policy statement says,

[T]he Office will not register a work in which the claim is in a “compilation of ideas,” or a “selection and arrangement of handtools” or a “compilation of rocks.” Neither ideas, handtools, nor rocks may be protected by copyright (although an expression of an idea, a drawing of a handtool or a photograph of rock may be copyrightable).

So are choreographic schemes and the like indeed merely compilations of uncopyrightable something elses?  Absolutely not.  As the Office explains (emphasis added):

A claim in a choreographic work must contain at least a minimum amount of original choreographic authorship. Choreographic authorship is considered, for copyright purposes, to be the composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive whole.  

Simple dance routines[, in contrast,] do not represent enough original choreographic authorship to be copyrightable. Moreover, the selection, coordination or arrangement of dance steps does not transform a compilation of dance steps into a choreographic work unless the resulting work amounts to an integrated and coherent compositional whole. The Copyright Office takes the position that a selection, coordination, or arrangement of functional physical movements such as sports movements, exercises, and other ordinary motor activities alone do not represent the type of authorship intended to be protected under the copyright law as a choreographic work.

So are my twinkling toes back in business?

Let’s say we keep them in the wingtips.  Great tip of the hat, however, to Oliver!

UPDATE:  The Ninth Circuit weighs in the choreography of “Hot Yoga” poses, as opposed to choreographic sequences, in Bikram’s Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, more or less in line with the Copyright Office’s approach, it seems.  Noah Feldman, a law professor and Bloomberg View columnist, disagrees with the reasoning:

This can’t be right. Consider the ballets of George Balanchine, whose copyrights are carefully guarded by the George Balanchine Trust. Each and every one of those ballets unquestionably incorporates an idea, or rather many ideas: of modernism, of classicism, of the relationship of movement to music, and so on.

What’s more, many people do ballet as a form of exercise and as an aesthetic-spiritual meditative experience, just as they do yoga. If a teacher hung out a shingle and charged students to attend and follow along while she danced Balanchine’s version of “Swan Lake,” without permission from the Trust, this would surely be barred by copyright.

In other words, Bikram yoga instructors aren’t just teaching a process — they’re performing a specific aesthetically inflected sequence.

Originally posted 2012-08-08 10:51:59. Republished by Blog Post Promoter