Class 11: Dramatic Works, Choreographic Works, and Audiovisual Works

Introduction

In Class 10, we discussed copyright protection of musical works and sound recordings. In particular, we discussed the difference between musical works and sound recordings, and which elements of each can be protected by copyright.

In this class we will discuss copyright protection of dramatic works, choreographic works, and audiovisual works. Section 102(a) of the Copyright Act provides that copyright protects "dramatic works, including any accompanying music," "pantomimes and choreographic works," and "motion pictures and other audiovisual works." But what kinds of works are included in those categories?

Dramatic Works

The Copyright Act provides that copyright protects "dramatic works," but does not define the term, because Congress felt that it had a "fairly settled" meaning. H.R. Rep. No. 94-1476, at 53 (1976). The Copyright Office has defined "dramatic works" as follows:

A dramatic composition is one that portrays a story by means of dialog or acting and is intended to be performed. It gives directions for performance or actually represents all or a substantial portion of the action as actually occurring, rather than merely being narrated or described. Examples of narration or description alone might be: the Bible story of Shadrach, Meshach, and Abednego, or a narration of the "Three Little Pigs." If the narrator is to devise or improvise his or her own action, the dramatic content is not fixed and thus the work is not a drama.

Compendium II of Copyright Office Practices § 431.

The Copyright Office had also explained, "The term 'dramatic works' includes plays prepared for stage presentation, as well as those prepared for cinema, radio, and television." Compendium II of Copyright Office Practices § 430.

An analysis of the dramatic works category shows how the categories of works of authorship can overlap. For example, a work consisting of words could be categorized as a literary work, a musical work, or a dramatic work, depending on the circumstances. In addition, the score of a dramatic work could be protected as a musical work, the script of a dramatic work could be protected as a literary work, and a film of a dramatic work could be protected as a motion picture.

Why does it matter whether a work is categorized as a literary work, musical work, or dramatic work? The Copyright Act imposes certain limits on the scope of copyright protection of literary and musical works. For example, Section 110(2) provides that some performances of literary and musical works by certain nonprofit and governmental entities are not infringing uses. 17 U.S.C § 110. In other words, the owner of a dramatic work can control uses of the work that the owner of a literary or musical work cannot. And Section 115 provides for compulsory licensing of musical works to make sound recordings. 17 U.S.C. § 115. In other words, after the initial publication of a musical work, the owner of the work is required to license cover versions at a fixed rate, but the owner of a literary or dramatic work is not.

Questions:

1. Is the dramatic works category necessary?
2. Is there any reason not to categorize dramatic works as literary works?

Choreographic Works

The Copyright Act provides that copyright protects "pantomimes and choreographic works," but once again does not define either term, because Congress felt that they had "fairly settled" meanings. H.R. Rep. No. 94-1476, at 53 (1976). However, Congress did note that choreographic works "do not include social dance steps and simple routines." H.R. Rep. No. 94-1476, at 54 (1976).

The Copyright Office has defined choreographic works as follows:

Choreography is the composition and arrangement of dance movements and patterns, and is usually intended to be accompanied by music. Dance is static and kinetic successions of bodily movement in certain rhythmic and spatial relationships. Choreographic works need not tell a story in order to be protected by copyright.

Compendium II of Copyright Office Practices § 450.01.

So, when can copyright protect a choreographic work? The Copyright Office has stated:

To be registrable, the choreographic work must contain at least a certain minimal amount of copyrightable matter in the form of dance steps or other movements in a coherent compositional arrangement. It must also be capable of performance as submitted. 

* * *

Social dance steps and simple routines are not copyrightable under the general standards of copyrightability. Thus, for example, the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable. However, this is not a restriction against the incorporation of social dance steps and simple routines, as such, in an otherwise registrable choreographic work. Social dance steps, folk dance steps, and individual ballet steps alike may be utilized as the choreographer's basic material in much the same way that words are the writer's basic material.

Compendium II of Copyright Office Practices § 450.05 & 450.06.

In other words, copyright protects the original elements of a a choreographic work. But when is an element of a choreographic work original? Can copyright protect a particular way of moving a body part? Can it protect a particular way of moving one's entire body? Does it require a series of movement? If so, how many movements?

Choreographic works are usually fixed in choreographic notation or in a motion picture. There are many systems of choreographic notation. Two of the most common are Labanotation and Benesh Movement Notation (also known as choreology or dance script).

Example of Labanotation

Example of Benesh Movement Notation

Questions:

1. Which elements of a choreographic work are protected?
2. When is an element of a choreographic work infringed?
3. Is copyright an appropriate way to protect choreographic works?
4. Psy creates the choreographic work Gangnam Style (2012). Is it protected by copyright?
5. John Doe creates the choreographic work Making Lunch (2013), in which the performer makes a sandwich. Is it protected by copyright? John Doe creates the choreographic work Making Lunch 2 (2014), in which the performer makes a sandwich while jumping up and down. Is it protected by copyright?
6. Merce Cunningham created choreographic works based on chance, and Teri Rueb created choreographic works based on chance. Are those works protected by copyright?

Merce Cunningham, Suite by Chance (Space Chart Entrance and Exit) (1952)

Teri Rueb, Dancer_1 GPS tracking of dancer's travels around Baltimore

Pantomimes

The Copyright Office has defined pantomimes as follows:

Pantomime is the art of imitating or acting out situations, characters, or some other events with gestures and body movement. Mime is included under this category. Pantomimes need not tell a story or be presented before an audience to be protected by copyright.

Compendium II of Copyright Office Practices § 460.01.

The Copyright Office has also stated, "Pantomimes are distinct from choreographic works, and thus their registrability does not depend on choreographic criteria." Compendium II of Copyright Office Practices § 460.

Marcel Marceau, The Maskmaker (1959)

So, when can copyright protect an element of a pantomime? The Copyright Office has explained:

To be registrable, pantomimes must include more than a few stock gestures. As there is no copyright protection for ideas in general, a style of movement imitating mechanical dolls, for example, would not be protectible. A significant amount of copyrightable matter in the form of specific gestures in such style and embodied in some tangible form, however, may be registered. Tableaux employing less than a minimum amount of action are not registrable as pantomimes.

Compendium II of Copyright Office Practices § 461.

The Copyright Office has also explained the fixation of pantomimes:

Unlike choreography, pantomimes are not usually fixed using a specific form of symbolic notation. Conceivably, however, the same systems could be used for notating pantomimes as for dance. To register a work as a pantomime, the movements must be described in sufficient detail to enable the work to be performed from such description, or an actual performance must be captured on some form of film or videotape. Subject to this requirement, any form of copy or a narrative description on a phonorecord will suffice

Compendium II of Copyright Office Practices § 463.

Questions:

1. Is the pantomime category necessary?
2. How does a pantomime differ from a choreographic work? Is it more like a dramatic work?
3. Which elements of a pantomime can copyright protect?

Motion Pictures

The Copyright Act protects "motion pictures and other audiovisual works." 17 U.S.C. § 102(a)(6). It does not define "motion pictures," but it does define "audiovisual works" as follows:

“Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

17 U.S.C. § 101.

Questions:

1. What does it mean for images to be "related"?
2. Do the images have to be presented in a fixed sequence?
3. Is a video game a "series of related images"?
4. In 1963, Stan Brakhage created the film Mothlight. Is it an audiovisual work? Are the images related?

Stan Brakhage, Mothlight (1963)

The Game of Life

The Copyright Office has stated that motion pictures are a sub-category of audiovisual works:

Motion pictures are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any. . . . It is possible for the series of related images to be embodied in a medium that is traditionally used for motion pictures, for example, film or videotape, and not impart an impression of motion. In such cases, the work is audiovisual, but not a motion picture. A series of related photographs or drawings embodied in the film stock would not be considered a motion picture, unless, when shown, the images give an impression of motion. Such an impression of motion could be accomplished by incorporating certain cinematic techniques, such as panning in and out and dissolving.

Compendium II of Copyright Office Practices § 471.

Questions:

1. What is the difference between audiovisual works and motion pictures?
2. Who is the author of a motion picture?