In this Note, Joi Lakes argues that the 1976 Copyright Act and the rules set forth by the Copyright Office are flawed with respect to defining what constitutes expressive, copyrightable material in a choreographic work. This ambiguity creates an imbalance between the public and private domains, which acts to stifle choreographic innovation instead of encouraging it. In particular, the movements comprising choreographic building blocks that properly belong in the public domain are not defined expansively enough. Current copyright doctrine also fails to emphasize the role of flow—or movement through time—in describing choreography’s expressive element, which is the sine qua non of copyright protection. Erroneous understandings of choreography’s expressive element can result in overprotection of dance works by finding copyright infringement where it does not truly exist. Finally, copyright law’s fixation requirement as currently understood could lead to under-protection for choreography, which is particularly difficult to “fix” in a tangible medium. Lakes argues that these imbalances between copyrightable and public domain material in the current Copyright Act can be rectified by amending it both to clarify the definition of a choreographic work and to liberalize the fixation requirement.
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