Re-imagining Marie Louise Fuller's copyright of dance in Fuller v Bemis

The question of copyright in dance has recently been at the center of attention for the so-called "Fortnite saga" (see Kat Mathilde's, Kat friend John William Shaw and Kat friend Charlotte Waelde posts on this topic here, here and here).

Delving into the history of IP litigation in the US we find the case Fuller v. Bemis [Albany Law Journal, v. 46, 1892, p.165-166]. This case saw Marie Louise Fuller, better known as Loïe/Loie or Louise Fuller, asking for an injunction, on the basis of copyright infringement, against Minnie Renwood Bemis in respect of her Serpentine Dance.  This case was resolved unfavourably for Loïe Fuller as the dance was not considered a "dramatic composition": "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. "

Loïe Fuller (1862-1928) was, in short, the living embodiment of Art Nouveau, a dancer, inventor and performer. Born in the United States, Loïe Fuller moved to Europe in 1892, to see her dancing finally recognised, possibly after the unsuccessful request for an injunction on her Serpentine Dance.

US Patent 5183347A "Garment for dancers"

In the decision in Fuller v. Bemis, Fuller's dance was defined  by the United States Circuit Court, Southern District of New York, Lacombe Circ. J., as follows:

The cause of such success, fame and profit was the originality and extraordinarily novel nature of the incidents, scenes and tableaux of said composition, which consists of a series of fantastic, graceful, unique, harmonious and highly pleasing dances, each of which portrays or represents different characters and all of which appeal to the sense of beautiful and the aesthetic emotions.

In the decision, a dramatic composition is defined as a work  where the action is not narrated or described, but represented.

The defendant argued that Movement, gesture and facial expression, which address the eye only, are as much a part of the dramatic composition, designed or suited for public representation as is the spoken language, which addresses the ear only.

Lacombe J. stated that, pursuant to the meaning of the Copyright Act, it is essential that a dramatic composition tells a story, even if a simple one. What is the subject of copyright are the ideas expressed by the storytelling, whether in action, speech, emotion or passion. According to the Court,  in filing for copyright protection, Ms. Fuller sought to protect a series of graceful movements combined with an attractive arrangement of drapery, lights and shadows, telling no story, portraying no character, depicting no emotion [..]. where they convey no ideas whose arrangement makes up a dramatic composition.

Therefore, the Court denied Ms. Fuller request for an injunction because it found that the dance in question, although pleasing to the eye, was not a dramatic composition as it failed to tell a story, portrayed no character or emotion.

In fact, until the Copyright Act 1976 entered into force when "choreographic works" and "pantomimes" were included in the list, it was not possible to use copyright to protect dance. In the first US copyright law of 1790 only maps, books, and charts were afforded protection. Musical compositions (1831), photographs (1865), and paintings, drawings, and sculptures (1870) were added in the coming years. According to the Copyright Act of 1909 (which was only replaced by the Copyright Act of 1976), ballet had to ''tell a story, develop a character or express a theme or emotion by means of specific dance movements and physical actions.'' The first choreography accepted as such by the Copyright Office, and not for telling a story, was Hanya Holm's "Kiss me Kate" dance in 1952.  (The Copyright Law and Dance, New York Times, 11 Jan 1981).

Pursuant to the provisions of section 102(a)(5) the Copyright Act (see here a Circular of the US Copyright Office)  pantomimes and choreographic works can be protected if they are fixed in some tangible medium of expression.  They need to contain one or more of the common elements of choreography, inter alia, a series of dance movements or patterns organized into an integrated, coherent, and expressive composition as a whole; a story, theme, or abstract composition conveyed through movement; a presentation before an audience. They need to be fixed in a tangible medium means by video recording, dance notation or textual descriptions.

If Ms. Fuller were to apply for the same injunction today she would have probably come out as the victorious party: her dance is fixed in a tangible medium (a textual description) and it is an expressive, abstract composition conveyed through movement. Ms. Bemis, however, would have to prove that her version of the dance is a derivative choreographic work. In order to do this, she would have to prove that her work was independently created and it contained a sufficient amount of creativity, which are not minor changes or trivial additions to the original.

Loie Fuller may have unsuccessfully sought copyright protection for her dance in the 19th Century, but she was granted patents for her "Garment for dancers" Patent US518347A, "Theatrical Stage Mechanism" Patent US533167, and "Mechanism for the Production of Stage Effects" Patent US513102.

Loïe Fuller was a pioneer, her style still influencing dancers today.