Choreography and Copyright

Einhorn v. Mergatroyd Productions (S.D.N.Y. April 12, 2006)

Judge Lewis A. Kaplan recently issued an openly disdainful opinion concerning a dispute between a choreographer, a playwright, and a producer:

We speak of “making a federal case” out of something to express the sentiment that someone is blowing something out of proportion. Plaintiff Edward Einhorn, represented by his attorney brother, has made this federal case out of a dispute over $1,000.

The parties to this case all aspire to success in the theater. Plaintiff Einhorn hopes to direct. Defendant Nancy McLernan is the author of the play Tam Lin, a work that was performed approximately eight times “Off Off Broadway” and that is at the core of this dispute. Defendant Jonathan X. Flagg was its producer.

Einhorn was allegedly hired to direct and “to create blocking and choreography” for the play Tam Lin. He allegedly agreed to perform the task for $1,000, but the parties never committed to a written contract. The day before the scheduled opening, Einhorn was fired from the production.

Prior to his termination, “Einhorn claims that he ‘authored an original blocking script for stage performance of the Play’ and that it ‘included elements of choreography for dance, fight and black-light puppetry.’ In addition, ‘[p]rior to the opening, defendants posted videos on their web site showing the blocking and choreography.” Most importantly, Einhorn’s “demand for payment of the $1,000 was spurned,” even though the “show opened and ran through the eight scheduled performances in October, using the blocking and choreography script that Einhorn claims to have prepared.”

Defendants sought the dismissal of the copyright infringement claim, arguing that Einhorn’s additions to the script “‘merely states non-protectable ‘stage business,’ ‘ ‘is incapable of copyright protection as ‘choreography,’ ‘ and ‘cannot be infringed, except perhaps by reproduction of the text ··· which is not alleged.’” Judge Kaplad did not agree:

The motion papers now before the Court do not address a series of questions important to resolution of this claim. For example, the parties have not addressed whether, to what extent, and when Einhorn's alleged contributions were fixed in tangible form. There has been no real analysis of the applicability of the doctrine of scenes a faire. Nor have the parties addressed the scope and effect of the certificate of registration given the fact that the copy of the work that was filed was only the alleged blocking script as distinguished from images of a performance depicting positions and movements. They have not analyzed Einhorn's alleged contributions individually or by category. In consequence, the Court is not in a position to make an informed judgment on defendants' principal contentions.

Judge Kaplan was more agreeable, however, to the defendant’s contention that the plaintiff was not entitled to any award of statutory damages or attorneys fees in light of Section 412 of the Copyright Act. In essence, the Judge found that the Plaintiff had failed to demonstrate that publication of the allegedly infringed work had occurred prior to December 10, 2004, the effective date of the copyright registration. Not only did he conclude that the performances involved fail to satisfy the definition of “publication” in Section 101 of the Copyright Act, but Judge Kaplan also deemed that “merely posting a digital file of a performance of the show on the Internet lacks the element of commercial exploitation involved in the motion picture distribution-for-exhibition situation.”

Holding: With regards to the copyright claims, the motion to dismiss was denied except that the plaintiff’s claims for statutory damages and attorneys fees for alleged copyright infringements prior to December 10, 2004 were dismissed.