The Carlton Dance and Alfonso Ribeiro, the Floss and Russell Horning (aka Backpack Kid), Milly Rock and 2 Milly. Several artists have recently come forward to claim ownership over copyright in the dance moves they have made famous and to restrict others from profiting from their iconic moves.

Recently, actor Alfonso Ribeiro was dealt a blow when the United States Copyright Office refused to register copyright in the dance made famous by Ribeiro's character Carlton on The Fresh Prince of Bel-Air. The Copyright Office refused the application for copyright registration on the basis that the dance was a "simple dance routine" and did not fall within the definition of a "choreographic work". As a result, the Copyright Office found that the dance was not eligible for copyright protection.

But could a dance move be protected under copyright law in Canada?

There have been few cases on the subject of copyright in specific dance moves. As a result, there is still uncertainty as to how dance moves like the Carlton Dance, the Floss, and Milly Rock would be treated under the Canadian Copyright Act.

What is protected under copyright?

The Copyright Act states that copyright will subsist in every original literary, dramatic, musical and artistic work.[1] This leads to two questions. First, does a dance move fall under the definition of a literary, dramatic, musical or artistic work? Second, is the creation of an individual dance move a sufficient exercise of skill and judgement to satisfy the requirement that the work be considered original?

Choreographic works under the Copyright Act

Choreographic works are explicitly included under the definition of a "dramatic work" in the Copyright Act.[2] But does a choreographic work extend to individual dance moves or does it apply only to works that combine a sequence of movements into a larger routine?

The definition of a "choreographic work" in the Copyright Act provides little assistance. The definition states that a choreographic work "includes any work of choreography, whether or not it has any story line".[3] In isolation, this suggests that a broad class of works could fall under "any work of choreography", including an individual dance move.

However, if we look to the meaning of the word "choreography", it is defined as "(1) the design or arrangement of a staged dance, figure skating, etc. (2) the sequence of steps and movements in dance or figure skating."[4] This definition suggests that a "choreographic work" must be interpreted more narrowly and that a single dance move would not be captured in this term. But what if a single dance move is repeated - would it then satisfy the requirement of "a sequence of steps and movements"?

Canadian courts have not yet directly considered this issue, leaving the final interpretation of the scope of a "choreographic work" an open question.

Skill and Judgement in the creation of an individual dance move

Canadian courts will consider a work to be original if the author has exercised a sufficient degree of skill and judgement in the creation of the work.[5] While the courts will not look to the artistic merits of a work, they will assess whether an author has exercised skill and judgement that goes beyond a mere mechanical exercise.

Ask any dancer and I suspect that they will tell you of the skill and judgement required to create a compelling dance move. But does the creation of an individual dance move, rather than a routine that combines a series of moves in a specific sequence, constitute a sufficient degree of skill and judgement as required under the Copyright Act? Similar to the issue of what constitutes a choreographic work, Canadian courts have not yet directly decided this issue.

Copyright in Dance Moves Before the Courts

How has copyright in dance moves been treated when the issue has come up before the courts?

In Rocky Mountain Dance Co v Brookes[6], the plaintiff, Rocky Mountain Dance Co., sought to prevent the defendant from infringing their copyright in the "East Texas Style Dancing", which consisted of a collection of dance steps and movements that were executed in what they described as highly complex and distinctive routines.

In refusing to grant an interlocutory injunction, the Federal Court stated that it could not find a prima facie case that the plaintiff's copyright was valid or that it was infringed by the defendants - such questions were to be determined at trial. No trial decision was reported for this case, leaving it undecided whether copyright could subsist in the specific dance moves that formed part of the "East Texas Style Dancing".

In Pastor v Chen[7], a case before the British Columbia Provincial Court, Mr. Pastor, a dance instructor and choreographer, brought a claim against his former pupil for teaching and performing his specific choreographed version of a form of Salsa called La Rueda.

La Rueda is a dance performed by at least three couples where every move follows a call from the leader. Mr. Pastor filed a copyright registration for his version of La Rueda, called "The Wheel of the World" and provided the court with evidence that he created original and modified dance moves that formed part of the dance. The trial judge stated that "the Claimant graphically displayed to me during his evidence his uniquely choreographed moves and dance style which I find were his invention and properly covered by copyright."[8]

While this suggests that specific dance moves could be subject to copyright, the registration at issue was for Mr. Pastor's dance "The Wheel of the World" and not for the individual moves that made up the dance. The Court also did not make an explicit finding of copyright infringement. Instead, the Court found that the defendant had breached a confidentiality agreement signed with Mr. Pastor in relation to his dance. Ultimately, the decision does not clarify whether copyright subsisted in the individual dance moves created by Mr. Pastor or the dance as a whole.

So you think you can dance?

While there is some basis in the case law to suggest that copyright may subsist in specific dance moves, it remains an open question which has not been clearly decided by the courts. As such, whether you are an artist looking to commercialize your dance move or you are interested in incorporating the latest viral dance into your own work, you should consider seeking legal advice to understand how you can best protect your creative work.

[1] Copyright Act s. 5(1).

 


[2] Copyright Act s. 2, definition of "dramatic work".
[3] Copyright Act s. 2, definition of "choreographic work".
[4] K Barber, ed, Canadian Oxford Dictionary, 2nd ed, (Oxford University Press, 2004), definition of "choreography".
[5] CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 at para 16.
[6] Rocky Mountain Dance Co v Brookes (1987),19 C.P.R. (3d) 131.
[7] Pastor v Chen, 2002 BCPC 169.
[8] Pastor v Chen, 2002 BCPC 169 at para 85.