Copyright and Dance

Jul 10, 2024 | Law Student Blog,

By Kevin Xu, Washington University in St. Louis School of Law, Juris Doctor Candidate, 2026

Music can be copyrighted; everyone knows that. You need a license to perform someone else’s music in most scenarios. But can you dance to it? Are dance moves copyrightable?

May choreographic works receive copyright protection?
The short answer is yes, but choreography didn’t clearly become copyrightable until recently. Copyright law includes an exhaustive list of categories of protected works, but prior to the 1976 Copyright Act, choreographic works were not a protected subject matter. That means for choreographic works to enjoy federal copyright protection, they needed to qualify as another category of protected works, such as drama. To be considered “dramatic work,” a dance had to “tell a story, develop a character, or express a theme or emotion.”

The 1976 Act, however, explicitly lists choreographic works as a protected category. That means dances no longer need to “tell a story” in order to receive copyright protection.

What exactly is copyrightable?
We first need to know the definition of “choreography” under copyright law to determine its protection. While the 1976 Copyright Act contains a definition section, it does not include a definition of “choreographic work.” The Copyright Office, however, does give us some guidance in the Office’s Circular 52. There, choreography is defined as “the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.”  They also listed some “common elements” that choreographic works typically contain, such as rhythmic movements of dancers’ bodies, a story, theme, or abstract composition, musical or textual accompaniment.

Compared to that rather general and vague definition, what’s more helpful is knowing what isn’t protected. Dances are composed of body movements; obviously, not all body movements and positions can be copyrighted. Specifically, choreographic works do not include social dance steps and simple routines. Indeed, simple routines would lack the necessary “originality” to receive copyright protection as any category of work.

As for the exact level of originality required for choreographic works, we do not have a clear answer. Most choreographic works are compilations to some extent, in the sense that they take pre-existing dance steps and combine or arrange them in an original, creative way. However, the movements do need to constitute “an expressive compositional whole.” In other words, the compilation cannot be just a series of unrelated movements.

As an example, the Copyright Office once rejected a copyright claim for “Ode to the Endzone,” which was a dance routine created by a football fan combining various end zone dance moves performed by professional football players, including the “Heisman pose,” the “California Quake,” and the “Funky Chicken.” The Copyright Office concluded that “Ode to the Endzone” was merely a random collection of existing dance steps, and the movements were not organized into a coherent whole.

Fixation
Another issue is that the choreography needs to be “fixed.” To receive copyright protection, a work must be fixed in a tangible medium, making it sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated. Merely thinking of dance routines and teaching them to others isn’t enough, and choreographers may need to take further steps to render their work fixed. Nowadays, the easiest way to fix dances is probably through video recordings, but one can also use notation systems such as Labanotation (a system for analyzing and recording human movements with abstract symbols). Textual descriptions, photographs, or drawings are also acceptable but may not be as good as a video recording.

A Recent Case: Hanagami v. Epic Games
There haven’t been many cases addressing the copyrightability of choreography, but a recent Ninth Circuit case gave us some insight. Kyle Hanagami is a famous choreographer who has worked with artists including Britney Spears, Justin Bieber, Jennifer Lopez, and BLACKPINK. He has millions of followers and over a billion video views online. In 2017, Hanagami published a YouTube video of himself and others dancing to Charlie Puth’s song “How Long.” He registered the choreography with the Copyright Office in 2021. Epic Games, the developer and distributor of the popular game “Fortnite,” allegedly used “the most recognizable portion” of Hanagami’s choreography to make and sell in-game customizations.

Before Hanagami’s lawsuit, several choreographers had (unsuccessfully) sued Epic over the unauthorized use of their dances. Hanagami’s claim was also dismissed by a federal court in California’s Central District. The District Court reasoned that Epic Games only used a small portion of Hanagami’s work, and those steps alone were not protectable. According to the District Court, Hanagami was entitled to protection only for the way the steps were expressed in his registered choreography. The two-second steps involved in the case, according to the court, could be registered as separate and distinct works of authority and were unprotectable.

However, the Ninth Circuit Court of Appeals rejected this point of view and reversed the decision. The Ninth Circuit pointed out that “poses” are not the only relevant element underlying a choreographic work; there are other expressive elements, such as timing, pauses, and repetition, and it would be an error to reduce choreography to poses. The Ninth Circuit also rejected the District Court’s opinion that the portion used by Epic was too short and simple. It reasoned that short does not always equate to simple, and more importantly, even if the copied portion could not be copyrighted on its own, it is still possible that Epic unlawfully appropriated that portion from Hanagami’s copyrightable choreography.

Hanagami and Epic reached a settlement agreement earlier this year, so we will not get a more detailed analysis of the facts from courts. What we can learn from the case is that even if only a small portion of choreographic work is copied, it could still possibly be a copyright infringement.

Conclusion
While the 1976 Copyright Act unquestionably extends protection to choreographic works, there are still some ambiguities about the scope of such protection. Nonetheless, choreographers should actively work to protect their dance works by fixing the works as videos or notations and registering them with the Copyright Office. Conversely, content creators should be careful when using the choreographic works of others, even if only a tiny portion of such works are used.

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