Copyright Infringement With Choreography

What is Copyright Infringement?

Copyright infringement is the unauthorized use of copyrighted work through the six exclusive rights (reproduction, distribution, public performance, public display, derivative works, and digital transmission). When receiving a copyright for a piece of work the owner is given these exclusive rights and the law prohibits others from using these rights on the copyrighted material. Infringement occurs when people use these exclusive rights on a piece of work without permission from the copyright holders. We will be specifically focusing on copyright infringement with choreography and the lack of legal protection as a practical matter within the industry.

Lack of Legal Protection With Choreography

We asked Brittany Perry-Russell, a well-known dancer, choreographer, and actress who has worked with Beyoncé, Rihanna, Katy Perry, and other artists, if choreographers typically copyright their work.

The lack of legal protection for choreography may be connected to the mistreatment choreographers face, as described by Ms. Perry-Russell. Existing laws fail to adequately safeguard them, forcing them to rely on themselves to ensure the contracts they sign offer sufficient protection. Furthermore, they typically work long and demanding hours and get paid on average $25/hr which is not a lot, especially when you factor in that many of these choreographers work in big cities where the cost of living is much higher. Given the many issues choreographers must deal with, copyrighting choreography becomes a secondary concern. 

To address these issues, Ms. Perry-Russell states that a strong choreographer’s union could help improve the legal protections for choreographers to not only prevent the mistreatment they face but also to help choreographers protect their copyrighted work. Studies have shown that unions make many positive contributions to their respective industries/fields including an increase in workplace health and safety, economic growth, and productivity. 

Beyoncé’s “Countdown” Music Video

A recent and well-publicized example of alleged copyright infringement was between Beyoncé and a Belgian choreographer named Anne Teresa De Keersmaeker. In Beyoncé’s “Countdown” music video, she included very intricate dance moves that caught the viewer’s attention. Shortly after its release, Anne Teresa accused Beyoncé of copying her work. She believed that the choreography in the music video looked very similar to two of her works from 1994 and 1997. Many viewers shared similar sentiments and even made a side-by-side video to showcase some of the similarities.

Analyzing this situation from a copyright infringement perspective is complicated and beyond the scope of this project.  It would require analysis of the laws of copyright infringement and Fair Use - possibly in multiple countries because De Keersmaeker likely created her choreography in Belgium - and separating the choreography in each work (which is protected by copyright law) from other elements in the works like outfits, settings, and mood (which may not be protected), among other issues.  That said, the similarities between portions of the works are striking and clearly intentional.

Kyle Hanagami v. Epic Games

In the realm of choreography copyright, one of the most notable cases is the legal battle between choreographer Kyle Hanagami and Epic Games, the creators of the popular video game Fortnite. Choreographer Kyle Hanagami accused Epic Games, the makers of Fortnite, of stealing his choreography for their game. Hanagami, known for his work with celebrities like Jennifer Lopez and Britney Spears, claimed that Epic copied parts of his original dance routine without permission and used it as an emote called "It's Complicated" in Fortnite. The initial ruling in Kyle Hanagami's lawsuit against Epic Games was a setback for the choreographer. The court initially dismissed his case, arguing that the individual dance poses he claimed were copied weren't enough to be protected by copyright law. Essentially, the court believed that the short segment of dance moves in question didn't qualify as a unique creative work deserving of copyright protection. However, Hanagami disagreed and appealed the court’s ruling, believing that his choreography as a whole, not just individual poses, should be considered for copyright protection. The Ninth Circuit Court of Appeals overturned this decision, stating that the lower court had improperly reduced choreography to "poses" and failed to consider the holistic nature of the work. The appeals court ruled that Hanagami's choreography deserved copyright protection and sent the case back to the district court for further proceedings, and the case was later settled by the parties . This video shows a side-by-side comparison of Hanagami’s dance  and the Fortnite emote:

The case was one of many filed in recent years over the use of stolen dance moves in games. Brittany Perry-Russell, who is a friend of Hanagami, shared her thoughts on the case: 

Professor Anthea Kraut

Anthea Kraut is a Professor in the Department of Dance at the University of California, Riverside. She teaches critical dance studies in relation to race and gender. She is a distinguished author with her most well-known book being “Choreographing Copyright: Race, Gender, and Intellectual Property Rights” . In this book, she highlights the many struggles minorities, specifically black people, face in the dance industry. From the restrictions to receive copyright protection for their work to the blatant plagiarism they face from their white counterparts, black choreographers have struggled for decades to gain recognition and address the systemic devaluing of their choreographic works and contributions. She has dedicated her career to educating others about these disparities and encouraging a constructive discussion in the industry to address them. 

Photo courtesy of Anthea Kraut

Racial Disparities with Copyright Infringement

We asked Professor Kraut to explain, in her opinion, what the issue is with the current copyright laws and how it created an environment that encouraged racial discrimination in the industry. 

In her book “Choreographing Copyright: Race, Gender, and Intellectual Property Rights in American Dance”  she used the example of Pearl Primus, a black choreographer who made significant contributions to American dance in the mid-20th century. Primus drew inspiration from African and African-American culture while addressing important issues the community faced such as social injustice and cultural heritage. Throughout her career, she faced challenges in securing recognition for her work and often saw her choreography and derivatives of her work being performed by white choreographers and dance companies. Professor Kraut highlights the systemic issues black and women of color choreographers face and how the lack of legal protection has made it very hard for them to succeed in the industry. This stems from the overall discrimination black people face in the dance industry. 

There are many genres of dance but the most common are ballet and contemporary. Unfortunately, it is not very common to see black dancers in these genres due to the discrimination they face. Misty Copeland is one of the most well-known dancers in the industry. She made history when she became the first black ballerina to be promoted to Principal Dancer in the American Ballet Theatre. This historical event only recently occurred in 2015 which is very surprising given that the American Ballet Theatre was founded in 1939. When interviewed Misty recounted the many struggles she faced throughout her life as a dancer from the lack of black and brown instructors to the people around her telling her that she “didn’t conform to what ballerinas were supposed to look like” . Throughout her childhood, she was forced to be separated from her fellow peers and was even prohibited from performing on stage by the Ku Klux Klan. She was not the first black dancer to face this discrimination nor will she be the last. 

As we continue to have these difficult discussions, hopefully with time, copyright protection will become more common in the industry. Copyright law will adequately protect choreographers of all different races and encourage more creativity as people will be more mindful when choreographing a dance. 

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