If you liked it then you should have put a © on it.

According to reputable sources, Beyoncé had one of the best videos of all time. It’s also been well publicized that parts of the dance routine used in Beyoncé’s video were, shall we say, heavily influenced by a 1960’s dance routine choreographed by Bob Fosse and performed by Gwen Verdon, called “Mexican Breakfast.”

Here is the Beyoncé video:

Below is the original Fosse routine, set to Single Ladies:

But I realized after seeing some articles on Beyonce’s rip off that I had no idea if there would even be anything legally actionable about it. I got curious enough to take a look, and it turns out choreography can in fact be copyrighted, under the Copyright Act of 1976, which provides, in part:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: … (4) pantomimes and choreographic works … .
17 U.S.C.A. 102(a)(4).

Dance routines are most commonly “fixed in any tangible medium” via video recording or labanotation. Mexican Breakfast does have a fixed video recording, but it could also be recorded in written form through the extremely complicated method of recording choreography known as labanotation, that marks the positions of the body through each move of a dance routine. So by today’s standards, a copyright could easily be obtained here.

That would not have been the case when Mexican Breakfast was first performed. In 1909, dance was not copyrightable, as it did not qualify as “useful” by Congress’ definition. In 1947, this changed, slightly, but only dances that conveyed a narrative qualified. It was only with the 1976 act that abstract moves — like Mexican Breakfast — obtained any protection all. Even with the expanded protection, however, actions for infringement of choreography remain extremely rare, and there are only a small handful of previous cases to go by.

Beyoncé is no stranger to infringement suits, but despite diligent googling, I was unable to come up with any information on whether there’s been any legal wrangling over Single Ladies. It doesn’t look as if there are any suits underway, and in any event its not clear that Beyoncé’s routine was an infringement of Mexican Breakfast — while there are obvious influences in Single Ladies, it might not rise to the level of substantial similarity. I don’t have any background in dance, and so won’t even try to speak to the number and nature of the similarities between the two routines; it’s hard for me to say if Single Ladies appropriates the heart of the Bob Fosse routine, or if it’s more of a reference than a rip off.

Anyway, it looks like someone cares enough about the copyright in the Mexican Breakfast to be protecting their interest in the video, even if not the routine itself– I tried and failed to find a copy of the original dance from The Ed Sullivan Show, as someone’s been yanking copies of it off the ‘nets.

And while I’m not convinced there are any net economic gains to be had from allowing copyright protection for dance moves — and the dearth of suits in this area would suggest there’s not much profit to be had in it even for choreographers — at least its not nearly as silly as allowing IP protection for yoga and sports moves.

-Susan

UPDATE: I wish I’d found this blog post sooner. On how and why copyright is not heavily utilized for dance:

Only 1,115 registered dramatic works, choreography, and pantomimes were transferred to the Library.

This very low figure corresponds to the legal literature on copyright and choreography, which repeatedly notes choreographers’ decision not to rely on copyright and to instead develop their own “community” system of protection, protection believed to be better suited to choreography and providing better protection. The community system works in large part because of the concentration of choreographers in New York City, the tight-knit nature of dance companies, and the reputation within the community enjoyed by choreographers.

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