Virgil Cojocaru is a JD candidate at Osgoode Hall Law school.
Choreography is about dance moves. It is the arrangement of dance moves, usually in patterns, accompanied by music. Are these dance moves protected by copyright? The argument out there is that they are, even when placed in games.
In order for choreography to be protected it has to be fixed to another medium, usually a tape, paper, DVD, etc. An alternative to recording the actual dance moves on a tape is to describe these moves precisely and record those descriptions. However, choreography does not have to tell a story, nor does it have to be performed in front of an audience. Even so, it needs an original expression of an idea. For an interesting summary on choreography please click here.
Pastor v. Chen shows the interplay of originality, expression, and fixation. Armando Pastor (claimant) alleged that he choreographed dances in the Cuban genre. Following some classes, the claimant thought that Roger Chen (defendant) had talent so he invited him to some intermediate tutorials. Afterward, he invited Mr. Chen to take part in a performance involving La Reuda dance moves. Based on one of the claimant’s witnesses, La Reuda is a Cuban way to dance salsa, which is difficult to perform because it involves multiple couples. After some performances, the defendant told the claimant he was not interested in dancing. Soon after, he left the claimant’s group.
However, a few months later, Mr. Chen started teaching La Reuda to other instructors and students in Vancouver, even though he had signed a Confidentiality Agreement (agreement) with the claimant. According to the claimant, the agreement applies because there is no other way to learn La Reuda, other than by being taught. For instance, one cannot pick it up by simply watching a video. The claimant was the only one in Vancouver who knew how to perform it. Over time, the defendant’s conduct allegedly led to a loss of business, as other instructors became proficient in this dance. Eventually, the claimant could no longer attract any students to take his dance classes in La Reuda. It is important to note that his financial decline began around the time the defendant started teaching this dance style to other instructors—the claimant’s competitors.
The claimant stated that he had made his own style of La Reuda, as any expert in this field does. Hence, Mr. Chen was not just teaching the general theories or moves of La Reuda that are in the public domain, but rather the specific choreographed moves developed by the claimant over his career. Mr. Chen admitted that he had taught some of the claimant’s moves to others, but he never performed them in public. He stated that most of the moves he taught he learned from one of the claimant’s videos and his travels to Montreal and Toronto.
Granted, the agreement could apply to the situation, given it is unlikely Mr. Chen learned those moves on his own. However, before the claimant can make use of it, several things need to be established. First, is the agreement a barrier to trade? The restrictions imposed by the claimant turn out to be reasonable for the protection of his business (the restriction extended to teaching and performing La Reuda). Mr. Chen could have sought the claimant’s permission, however he did not. The next issue is whether the claimant’s moves were in the public domain. Based on the evidence of the claimant, defendant, and other witnesses the Court concluded that the choreographic moves (the expression) are original and fall within copyright. Even so, it is worth pointing out that the Court does not address the dichotomy of idea and expression. How close is the expression to the idea? If the idea is too close to the expression, the protection of the latter will stifle the use of the idea, reducing innovation.