Third edition of USA copyright office compendium – compilations and derivative choreographic works

Derivative choreographic works

A derivative choreographic work is a work that is based on or derived from one or more preexisting works, regardless of whether the preexisting work is a choreographic work, a pantomime, or any other type of work listed in Section 102(a) of the Copyright Act. Typically, derivative choreography is a new version of a preexisting choreographic work or an entirely new work that combines preexisting choreography with a substantial amount of new material.

Examples:

• Adding a new section to Petipa’s Don Quixote.
• A modern dance version of the ballet The Nutcracker.
• The new authorship that the choreographer contributed to the derivative work may be registered, provided that it contains a sufficient amount of original choreographic authorship. Specifically, the new material that the choreographer contributed to the work must be independently created and it must contain a sufficient amount of creativity. Simply making minor changes or trivial additions to a preexisting choreographic work does not satisfy this requirement. Moreover, simply adding movements to a social dance will not alter the nature of the work as an uncopyrightable social dance.

Compilations

The 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.”

Typically, the author of a compilation selects the preexisting material that is included in the compilation, the author classifies, categorizes, or groups these elements into particular sequences, and the author decides how these elements should be arranged within the compilation as a whole.

A compilation may be registered if the author’s selection, coordination, and/or arrangement of preexisting material was independently created and if the selection, coordination, and/or arrangement contains a sufficient amount of creativity. In addition, the compilation must fall within one or more of the categories of works listed in Section 102(a) of the Copyright Act.

In other words, the compilation as a whole must constitute a choreographic work, a pantomime, a dramatic work, or one of the other categories of works listed in Section 102(a) of the Copyright Act. If the selection, coordination, and/or arrangement of dance steps or other physical movements as a whole do not fall within one or more of the congressionally established categories of authorship, the registration specialist may refuse registration.

Unlike other categories of authorship, such as literary works, musical works, pictorial, graphic, or sculptural works, audiovisual works, and sound recordings, the mere selection, coordination, and arrangement of bodily movements does not necessarily result in the creation of a choreographic work, even if the work contains more than a de minimis number of dance movements.

An expressive dance composition may qualify as a choreographic work if it “represents a related series of dance movements and patterns organized into a coherent whole.” As a general rule, classical ballet and modern abstract dance are considered choreographic works, because they objectively constitute an expressive compositional whole. By contrast, many combinations of dance steps or other physical movements do not satisfy this requirement.

To be copyrightable, a compilation of movements or steps must fall within one or more of the categories of copyrightable subject matter under Section 102(a).  While a compilation of dance steps may satisfy the criteria for a “choreographic work,” a compilation of social dances, simple routines, or other uncopyrightable movements may not satisfy these criteria when considered individually or in the aggregate.

If the author’s selection, coordination, and/or arrangement of steps or movements does not result in an expressive compositional whole, the compilation does not constitute copyrightable subject matter under Section 102(a)(4) of the Copyright Act, and as such, cannot be registered as a choreographic work.