Intellectual Property – copyright — dance

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U.S. Court of Appeals for the Seventh Circuit

Civil

Intellectual Property – copyright — dance

A dance routine performed in a banana costume at a trade show is not copyrightable.

“The performance itself was not copyrighted or even copyrightable, not being ‘fixed in any tangible medium of expression.’ 17 U.S.C. § 102(a); see, e.g., Kelley v. Chicago Park District, 635 F.3d 290, 303–04 (7th Cir. 2011); Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663, 675 (7th Cir. 1986); United States v. Moghadam, 175 F.3d 1269, 1280–81 (11th Cir. 1999); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.03[B], p. 2?32 (Aug. 2004). To comply with the requirement of fixity she would have had either to have recorded the performance or to have created a written ‘dance notation’ of it. See Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624, 632 and n. 13 (2d Cir. 2004); Horgan v. Macmillan, Inc., 789 F.2d 157, 160 and n. 3 (2d Cir. 1986); ‘Dance Notation,’ Wikipedia, http://en.wikipedia.org/wiki/Dance_notation. She did neither.”

Affirmed.

13-2899 Conrad v. AM Community Credit Union

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Posner, J.