Examples:
• Aruna Desai choreographed a music video for a song titled "Made in the USA." The dance is a complex and intricate work performed by a troupe of professional dancers. During the chorus, the dancers form the letters "U, S, A" with their arms. Although the dance as a whole could be registered as a choreographic work, the Office would reject a claim limited to the "U, S, A" gesture.
• Butler Beauchamp is a wide receiver for a college football team. Whenever he scores a touchdown, Butler performs a celebratory dance in the endzone. The dance merely consists of a few movements of the legs, shoulders, and arms. The Office would refuse to register this dance as a choreographic work.
805.5(B) Social Dances, Simple Routines, and Other Uncopyrightable Movements
Congress expressly recognized choreography as one of the categories of copyrightable subject matter under Section 102(a)(4) of the Copyright Act. The legislative history indicates that "the technical term 'choreographic works,' as used in the context of copyright, may refer both to the dance itself as the conception of its author to be performed for an audience, and to the graphic representation of the dance in the form of symbols or other writing from which it may be comprehended and performed." Copyright Office Study No. 28, at 93. Although Congress did not define this "technical term" in the statute, it does not have the same meaning as "choreography," which is often used as a noun or verb for any type of dance or artistic display, as in "The square dance caller provides the choreography that the dancers follow" or "The company staged a well-choreographed production of Richard HI."
When Congress extended federal copyright protection to choreography, it intended to protect expressive works of authorship, such as ballet or modern dance. However, Congress did not intend to protect all forms of dance or movement. The legislative history specifically states that "choreographic works do not include social dance steps and simple routines." H.R. Rep. No. 94-1476, at 54 (1976), reprinted in 1976 U.S.C.C.A.N. at 5667; S. Rep. No. 94-473, at 52 (1975).
The U.S. Copyright Office cannot register a claim to copyright in social dances or simple routines, because they do not constitute copyrightable subject matter. For the same reason, the Office cannot register a claim to copyright in ordinary motor activities, functional physical movements, competitive events, feats of physical skill or dexterity, or the like. Congress gave federal courts the flexibility to interpret the scope of the existing subject matter categories, but only Congress has the authority to create entirely new categories of authorship. "If the federal courts do not have the authority to establish new categories of subject matter, it necessarily follows that the Office also has no such authority in the absence of any clear delegation of authority to the Register of Copyrights." Registration of Claims to Copyright, 77 Fed. Reg. at 37,607.
The fact that a dance or movement may contain more than a trivial amount of original authorship is irrelevant to this determination. Social dances, simple routines, and other
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