65th Anniversary of the First Copyrighted Choreography—Although Not Copyrighted As Choreography

I taught group fitness classes for many years, and I choreographed hundreds of complex step routines. I learned from some of the best choreographers in the industry, all who were willing to share their genius. I always wondered how much of their work I could legally use. Could they register a copyright for it? Could I protect my choreography? While there is a category for copyrighting choreography, not all types of choreography are covered by the law.

The 1976 Copyright Act was the first U.S. law expressly to make choreography a copyrightable subject matter. A quick search of the Copyright Office’s online catalog of records beginning in 1978 found almost 4,500 entries using the keyword “choreography.” But before then, choreography was registered in the Copyright Office, just not as choreography. In 1952, Hanya Holm registered the choreography for the Broadway musical Kiss Me Kate as the first claim to copyright on a choreographic work. She registered it as a drama, not as choreography, but it did meet the requirements for registration. The deposit was sent on microfilm in the form of Labonotation, a written dance notation system that records precise movement using abstract symbols. The work received registration number DU30088.

Holm is on record as a contributor to the revised law. She was invited to comment on Copyright Law Revision Study number 28, Copyright in Choreographic Works, written by attorney-advisor Borge Varmer and prepared for the Subcommittee on Patents, Trademarks, and Copyrights. Her letter, dated January 2, 1960, makes three points: choreography should be subject to copyright; choreography should be named as a separate category of copyrightable matter; and the term “choreographic works” should include dramatic concert pieces, lyric-dramatic concert pieces, satirical concert pieces, and dance in operas, musical comedies, and revues. She concluded, “I realize that the issue is of greatest importance, and I hope that a protective law can be worked out.”

Back to my question: can you copyright aerobic fitness choreography? Turns out, the answer is no. According to the Compendium of U.S. Copyright Office Practices, chapter 800, section 805.5 (B)(3), “‘Functional physical movements’ and ‘ordinary motor activities’—in and of themselves—do not represent the type of authorship that Congress intended to protect as choreography.” It goes on to say, “A work may be precluded from registration as a functional system or process if the particular movements and the order in which they are performed purportedly improve one’s health or physical or mental condition. . . . Examples of functional physical movements that cannot be registered with the Office include exercise routines, aerobic dances, yoga positions, and the like.”