Can a dance be copyrighted? That question is back in the news.
Big Freedia filed a lawsuit in federal court last week against her former choreographer (and guest on her reality show, “Queen of Bounce”) Wilberto Dejarnetti. The New Orleans bounce rapper seeks a declaration that she owns both the choreography and music to certain tracks the two worked on from 2014 to 2017, including “Just Be Free Intro,” “N.O. Bounce,” “Explode,” “Shake Session Medley,” “Dangerous,” “Best Beeleevah” and “Drop.”
Bounce is a variety of hip-hop created in New Orleans in the late 1980s that includes call-and-response chants that were influenced by the city’s Mardi Gras Indians. Dances, such as twerking, generally accompany the songs. For the most part the genre, and these communal dances, remained a hyperlocal phenomenon until the rise of two local record labels: Cash Money Records (featuring artists such as Lil' Wayne, Juvenile and Manny Fresh) and No Limit Records (featuring Master P and Mystical). Now, artists such Beyoncé and Drake dabble in the genre.
Freedia’s lawsuit, obtained by The Washington Post, contends that Dejarnetti says Freedia owes him $500 per month “to continue using” certain choreographed dances that he worked on. The suit also states that Dejarnetti claims he helped write several songs, on which he is demanding to be listed as a co-author — a claim Freedia denies. (The Post is attempting to reach Dejarnetti for comment. Freedia’s attorney declined to comment.)
Freedia fired Dejarnetti in 2017 after his “behavior was frequently erratic, and his temperamental nature caused turmoil and strife,” the lawsuit states.
There are several other conflicts throughout the lawsuit, but what stands out is the choreography. In recent years, a few celebrities have gotten into disputes over ownership of dance routines, such as in 2011, when avant-garde Belgian choreographer Anne Teresa De Keersmaeker accused Beyoncé of plagiarizing several of her experimental ballets. (The feud never escalated to a lawsuit.)
Choreography was always arguably subject to copyright under the earliest copyright law, which was enacted in 1790 and slowly expanded to cover other works outside of maps, books and charts. But the 1976 Copyright Act was the first U.S. law to expressly make choreography a copyrightable subject matter.
Before that, as attorney Nicholas Arcomano noted in the New York Times in 1981‚ “the only way a choreographer could obtain protection against unauthorized performances of a dance work was to attempt to register it as a ‘dramatic composition,'” which he called an “unrealistic and narrow approach.”
The reason that was so unrealistic was illuminated in 1892, when dancer Loie Fuller sued another dancer for performing her creation “Serpentine Dance,” which Fuller had performed at Madison Square Theater. The court dismissed the suit, saying that “a stage dance illustrating the poetry of motion by a series of graceful movements combined with an attractive arrangement of drapery, lights, and shadows, but telling no story, portraying no character and depicting no emotion is not a dramatic composition within the meaning of the Copyright Act.”
In other words, there was no story.
The Copyright Act of 1909 addressed the issue but said that to be subject to copyright, a dance, such as ballet, had to ''tell a story, develop a character or express a theme or emotion by means of specific dance movements and physical actions.''
Thanks to the 1976 act, choreography now follows the same guidelines as most other works subject to copyright. To be eligible, a choreographed artistic routine must fit two basic requirements: “It has not to have been copied from something else. It has to be originated by the author. And second, it needs a modicum of creativity,” said Terry Hart, the vice president of legal policy and copyright counsel for the Copyright Alliance, a nonprofit organization that defends the copyrights of artists.
“It needs some creative spark, but that threshold is pretty low, generally speaking,” he added.
When it comes to choreography, Hart said, the arranged dance generally has “to project something to the audience, unlike a social dance like a square dance, which is performed by the public.”
That said, he pointed out in dance — as in all art — there are certain building blocks that artists can use as a foundation to create something larger, much like the same four chords are often recycled through much of rock music but are arranged to create different songs. The key is that the dance has to be perceptively different from those building blocks.
“Imagine a ballet company taking a traditional square dance and doing something to it so that it’s conveying a story or an emotion beyond the original,” Hart said. But “it has to be something objectively different, some tweak on the arrangement or change to that existing social dance” to be able to be copyrighted.
Which brings us back to Big Freedia. As she points out in her lawsuit, the choreography she employs is “largely based on and derivative of traditional ‘bounce’ dance movements and other routines [Freedia] and [her] dancers had been employing for years.”
In other words, the bounce scene provided the building blocks for the choreography. The question comes down to who added any tweaks to the dances. Freedia claims that she paid Dejarnetti in full and that he has no claim of ownership.
“For over a year we’ve tried our best to resolve this matter with Mr. Dejarnetti,” Freedia’s representative told Pitchfork. “Our offers have been more than fair. Litigation was a last resort and something we did not undertake lightly. Simply put, Freedia is asking the Court for a ruling that allows her to continue performing and entertaining without Mr. Dejarnetti’s unwarranted interference.”
Freedia also seeks unspecified monetary damages in the lawsuit, in addition to ownership.