register a work that simply directs the performer to improvise a dance based on a particular theme or otherwise does not illustrate, depict, or describe the dancers' specific movements. See Copyright Office Study No. 28, at 102-03 ("It is doubtful, at best, whether the Federal statute could extend copyright protection to a work presented only in a performance and not recorded in some tangible form of 'writing.'").
805.3(D) Forms of Fixation for Choreographic Works
805.3(D)(1) Dance Notation
Dance notation may be used to represent the precise movement of the dancers in a choreographic work. Examples of dance notation systems include Labanotation (which employs abstract symbols), Benesh Dance Notation (which employs stick figures), among other systems. See generally Ann Hutchinson Guest, Choreo-Graphics: A Comparison of Dance Notation Systems from the Fifteenth Century to the Present (1989).
While dance notation may be used to fix a choreographic work, the notational system itself is a system that is not eligible for copyright protection under Section 102(b) of the Copyright Act.
805.3(D)(2) Audiovisual Recordings
A choreographic work may be embodied in a motion picture or other audiovisual recording, such as a music video.
805.3(D)(3) Textual Descriptions, Photographs, Drawings, Illustrations, or the Like
A choreographic work may be fixed with a textual description, photographs, drawings, or any combination of the foregoing, provided that the description is specific enough to identify the precise movements of the dancers and provided that the description is sufficiently detailed to serve as directions for its performance. See Horgan, 789 F.2d at 163 (noting that photographs "may communicate a great deal" about a choreographic work, such as "a gesture, the composition of dancers' bodies" as well as "the moments before and after the split second recorded.").
805.4 Copyrightable Authorship in Choreographic Works
The U.S. Copyright Office may register a claim to copyright in a choreographic work, provided that (i) the work is a dance; (ii) the dance constitutes copyrightable subject matter under Section 102(a)(4) of the Copyright Act; (iii) the dance contains a sufficient amount of choreographic authorship; and (iv) the dance was created by a human author for human performers. These requirements are discussed in Sections 805.4(A) through 805.4(C).
805.4(A) Copyrightable Subject Matter
As the Second Circuit observed in Horgan, "[d]ance is static and kinetic successions of bodily movement in certain rhythmic and spatial relationships," while choreography is
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