Is choreography copyrightable? vis-a-vis Deadpool & Wolverine's opening scene [Aug. Edn. '24, Intellectually Yours]

1. Introduction

"Don't want to be a fool for you

Just another player in your game for two

You may hate me but it ain't no lie

Baby bye bye bye"

If you aren’t already singing it or dancing along, the lyrics extracted above are from the song ‘Bye bye bye’ by the boy-band Nsync released way back in 1990. The song has been resurrected from the memories of them 90s kids and catapulted into pop culture, thanks to the opening scene of Marvel’s Deadpool & Wolverine. With a staggering $211 million in its first weekend at the U.S. Box Office alone, the film cemented its place in the major leagues. The song’s title on YouTube has been renamed to 'Nsync - Bye Bye Bye ?(Official Video from Deadpool and Wolverine)', alluding to the association.?

Readers who haven’t watched the movie yet are advised to skip the next few lines or read it at their own risk *spoiler alert*. Dancepool slaying the dance-fight choreography sequence to ‘Bye Bye Bye’ as he takes on agents from Time Variance Authority, with the help of a corpse who will remain unnamed (Lest said, no graves were desecrated!) was the most outrageously cheeky way to set the scene. Fans across the world are calling the opening scene one of Marvel's best.

Deadpool’s continuous jabs on the Disney-Fox merger and jokes like “but that would be IP infringement, right?” had my research senses tingling throughout the movie. Thus, sparked the idea for this august article. Now that Dancepool has a fan base of his own and reels of users emulating the choreography from the infamous scene have been going viral on various social media platforms; Is the choreography to Bye Bye Bye in the opening scene of Deadpool & Wolverine copyrightable? If yes, what is the standard of originality for a choreographic work? Are there any case laws on copyright infringement in choreography?

2. Intellectually Yours

2.1. Copyright in Choreography : American and Indian Perspective

In the US, a dance or choreographic work is copyrightable under § 102(a)(4) of the US Copyright Act. However, not every dance routine or a piece of choreography is protected. The US Copyright Office defines choreography in its Circular 52 on Copyright Registration of Choreography and Pantomime –

“Choreography is the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole.”

The circular further stipulates inclusive formats of fixation for choreographic works and pantomimes, viz., dance notation such as Labanotation and Benesh Dance Notation, video recordings of a performance, and textual descriptions, photographs, or drawings.

In India, the approach followed is similar to the US position pre-1978 i.e., choreography falls under the subject matter of ‘dramatic work’ (Sec. 13(1)(a) of the Indian Copyright Act). Section 2(h) of the Copyright Act defines dramatic works as, "...any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film." There has been no clarifications or standard tests forthcoming from either the Registrar of Copyrights or the Courts with respect to originality or medium of fixation of copyrightable choreography.

2.2. Case Laws

In the case of Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC ?[803 F.3d 1032 (9th Cir. 2015)], a yoga sequence comprising of 26 asanas and 2 breathing exercises developed by the plaintiff-Bikram was held not to be copyrightable.

The US Supreme Court in Fourth Estate Public Benefit Corp. v. Wall-Street.com laid down that issuance of copyright registration from the U.S. Copyright Office is a prerequisite for filing copyright infringement suits. Owing to the said registration requirement, infringement suits surrounding the celebratory dances in the game Fortnite (Kyle Hanagami v. Epic Games Inc., read more here) including a suit by the Backpack Kid for unauthorized use of the Floss, were either withdrawn or settled.

An interesting Indian case is Academy Of General Edu., Manipal vs B.Malini Mallya. ?Here, Dr. Karanth (a celebrated artist & Jnanapeeth awardee) developed Yaksha Ranga – a new form of Yakshagana. ?Through his will, Dr. Karanth vested his death copyrights to B.Malini Mallya, who then filed a copyright infringement suit against the Academy for performing Yaksha Ranga without prior permission. The hon’ble Apex Court ruled that the copyright in the dance did vest with Manini Mallya, however the performance by Academy amounts to fair use within the meaning of provisions of Section 52(1)(i), as the performance was conducted before a non-paying audience.

In Anupama Mohan v. State of Kerala (WP(C). No. 22790 of 2015), the Kerala High Court ruled in favour of the Kuchipudi dancer, holding that unauthorized sale of videos of dance performance by the Government was a violation of the dancer’s copyright.

2.3. Nick Pauley and Darren Wilson

While many assumed Nick Pauley, the dancer-choreographer who plays Dancepool in the movie to be the choreographer; it is Darrin Henson, the original choreographer of the dance routine to Bye Bye Bye as seen in Nsync’s 1990 video who owns the rights to the choreography. Interestingly, Mr. Henson also notes that he was unaware of his choreography being included in the film (source).

Nick Pauley’s spin on the choreography truly embodied the persona of Deadpool and brought the opening scene to life. This leads me to a curious question - ?Whether Nick Pauley’s alterations to the original choreography are impactful enough to be granted standalone copyright protection or would it be considered ‘de minimus’? (This is a question for the readers, do comment or dm me with your answers).

3. Conclusion

Choreography could be termed as an unconventional or underutilized form of art...wait, why conclude? In a more real sense, does anything have a conclusion? If every ending is a new beginning, are we hopping from one beginning to another? Or are we caught in the middle, forever in anticipation of what's next?