By: Dapper John
The past few years have seen an explosion of new talent, with performers, producers, and choreographers popping up everywhere and putting on creative and interesting shows. Many participants in this burgeoning burlesque scene, however, are worried about how to protect their ideas from unauthorized borrowing. Imitation may be the sincerest form of flattery, but it is not flattering to spend months perfecting an original routine, only to see it performed by someone else a few weeks later. In this article I hope to clear up some of the confusion over copyrights and trademarks, and describe, in general terms, how each may be used to protect original ideas.
Please note, this article is a brief overview and only scratches the surface of a very complex area of the law. It is intended to provide general guidance only and should not be viewed or utilized as legal advice to be applied to fact-specific situations. Contact an attorney for any specific questions or for advice regarding a specific situation.
What is the difference between a copyright and a trademark?
Copyrights and trademarks share many similarities. Both are registered with an agency of the federal government. Each one gives the owner exclusive rights to the work, meaning the owner has the right to prevent anyone else from using their work. What exactly is the difference between these two forms of intellectual property protection?
A copyright protects the expression of a person’s ideas, and is focused on the originality of the piece. Copyright protection is given to creative works like writing, computer programs, music, choreography, lyrics, graphic designs, sculpture, photographs, movies, and sound recordings. The expression must be “original,” which, in this context, means a work that is not an exact copy of another work. Copyrights are also self-executing, meaning that an author is automatically protected by federal copyright. Nonetheless, copyrights can be registered with the Library of Congress, and certain remedies for infringement require registration.
A trademark, on the other hand, protects something that is used to identify where a product or a service comes from, and is focused on distinctiveness. An example of a trademark would be a distinctive logo, like the Pin Curl logo on the cover of this magazine, which is placed on products to inform consumers that the product came from that particular company. The logo itself is not trademarked, but its use in connection with a particular product or service is protected. Just like a copyright, a trademark can be established without formal registration, although, as explained below, the protection will be limited in scope. Trademarks are registered with the United States Patent and Trademark Office.
There can be some overlap between the copyright and trademark. If you paint an original picture, that picture is protected by copyright. If you use that picture as a distinctive logo to advertise your business, it can be registered as a trademark. Both protections will be there, and it is only a question of which protection you use to enforce your rights in the work. That, in turn, depends on how those rights are violated. If your picture is just copied, it’s a copyright infringement. If it’s used to sell a different product, it’s probably a trademark infringement as well. In the context of burlesque, copyright can be used to protect original performances and choreography, while trademark protects stage names and logos.
What is the time and geographic scope of a copyright and trademark?
One of the most important differences between trademarks and copyrights is that copyrights will expire. As a general rule, copyrights for your new work will last for your lifetime, plus an additional seventy years. Trademarks are issued for a finite period of time, but they can be renewed and, as a result, could last forever.
The Copyright Act provides nationwide protection of a copyrighted work. There are separate national copyright laws in each country, although international treaties—specifically the Berne Convention—facilitate protection of copyrights worldwide. Protection in one Berne country will be extended to other Berne countries. A list of countries who are signatories to the Berne Convention can be found here.
The geographic reach of a trademark depends on whether or not it has been registered. Trademark rights in the United States can be established through mere use of the mark in connection with the associated goods or services. Without federal registration, however, the rights established by use of the mark will be limited to the geographic area where the mark is actually used. Thus, later users who adopts the same or a similar mark without knowledge of the prior user may develop their own trademark rights to a different geographic region. For example, if you use a logo to advertise your performances in Texas, you will have trademark rights as to that logo in Texas. If another performer unknowingly starts using the same logo in New York, then that performer will have his or her own trademark rights in New York. Accordingly, a mark owner who relies only upon common law trademark rights may encounter obstacles to his or her ability to use the mark (and to exclude others from using its mark) as the owner starts performing in other places.
Luckily, a U.S. federal registration on the Principal Register confers nationwide “constructive notice” of the registrant’s ownership and rights in the mark, preventing a later user from claiming lack of knowledge of the original mark. A federal registration provides a nationwide scope of protection over later users of the same or similar marks in connection with the same or similar goods or services.
In certain foreign countries, federal registration within that country’s registration system is the only way to secure trademark rights, and the first to file an application for registration has priority over later registrants, regardless of who actually began using the mark first in that country or elsewhere.
Can you copyright the name of your troupe, your performance name, or the name of a specific show?
Titles, names, short phrases, and slogans are not protected by copyright law. Similarly, copyright law does not apply to aesthetic elements such as simple product lettering or coloring. To be protected by copyright, a work must contain at least a minimum amount of authorship in the form of original expression. Names, titles, and other short phrases are simply too minimal to meet these requirements. This is why you will often see books and movies sharing the same title.
Names, slogans and phrases which are used in connection with a product or service should be protected by registering a trademark, so long as they otherwise meet the distinctiveness requirement.
Can you copyright a burlesque show itself?
Ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection. As a result, a burlesque show itself, as an idea or concept, cannot be protected by copyright. Specific aspects of the show, however, such as original choreography or music, can be copyrighted. A distinctive name or logo for a show can also be trademarked.
Can you copyright choreography?
Yes, if it is original and fixed. Choreography is the composition and arrangement of dance movements and patterns usually intended to be accompanied by music. To be protected by copyright, choreography does not need to tell a story or be presented before an audience. Each work, however, must be fixed in a tangible medium of expression from which the work can be performed. Common methods for “fixing” choreography are a video of a performance or written choreographic notes. Keep in mind, though, that choreography that is only performed in front of an audience, without video or notation, cannot be protected. Choreographic works that have not been notated or recorded are unfixed and cannot receive copyright protection.
What is the scope of such copyright (eight count, one move, ect.)?
There is no clear standard on how many steps or other movements are required to create a copyrightable work. The Copyright Act itself does not define choreography. In one of the only cases to address the topic, the Court of Appeals for the Second Circuit held that “social dance steps and simple routines” cannot be copyrighted (so the two-step or a simple grapevine cannot be copyrighted), and went on to define choreography as “the composition and arrangement of dance movements and patterns, [which]is usually intended to be accompanied by music.” Yeah, not so helpful. Something tells me judges are not big dancers.
But what “series of moves” is original enough to be copyrightable? Newly-created steps, in isolation from any particular sequence, might be “original,” but are probably ineligible for protection, as they constitute “ideas,” “systems,” or “methods of operations” excluded from protection. Combinations of steps, however, could be original and copyrightable. Group of dancers performing steps in unison are also likely to increase the originality, and, therefore, the copyrightability (I’m a lawyer, I can make up words) of a work. Unfortunately, no court has provided guidance on this issue, so the lines remain fuzzy.
One interesting aspect of copyrighting choreography is that copyright in choreography is not tied to a specific piece of music. A dancer could, theoretically, infringe on another’s choreography by performing an infringing dance to an entirely different piece of music.
It is similarly unclear when a dance infringes on a protected piece of choreography. The general test for copyright infringement is whether the infringing work is “substantially similar” to the copyrighted work. Again, there is little helpful case law in this area, leaving choreographers in the dark as to when imitation changes from flattery to infringement.
Can you copyright or trademark a prop or gimmick?
Not really. Remember that a copyright protects the expression of a person’s ideas. A prop by itself is a device, and, therefore, is not likely to be considered an expression worthy of protection. A description of a prop could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the prop. An exception may exist for props that are themselves original works of art similar to a painting or sculpture, whose copyright protection would exist independently from their use in a performance. Additionally, a copyright of a performance may prevent another performer from using a substantially similar prop in the same way, because doing so would infringe on the copyright of the performance. This would not prevent a performer from using the prop in a different performance, however. Finally, a prop that is sufficiently unique may be patented, but patent protection is well beyond the scope of this article.
Let’s look at an example that ties all these concepts together. A performer performs under the name “The Doughty Brunette” and uses a distinctive banana logo in all her advertisements, business cards, and promotions. She also has a giant banana prop that she rides in an “original” way in her signature routine. For the past three years, TDB has performed this routine in an annual Banana Festival show that she also produces, called “The Phallic Fruit Extravaganza.” This show has been videoed a few times and is available on Youtube. What can be copyrighted, and what can be trademarked?
The names, “The Doughty Brunette” and “The Phallic Fruit Extravaganza” can likely be trademarked, as can the banana logo, so long as they are all distinctive. This protection will only cover the areas where she performs, unless she registers the trademarks. The specific, original motions or choreography she uses to ride the banana can probably be copyrighted, as least as they appear in the video. She should put a short “copyright: [name]” notice on the video, just in case (she can use that fun symbol: ©). Registering with the Library of Congress would ensure that she is protected. This copyright would prevent someone from riding a substantially similar banana in a substantially similar way. If the banana is unique is some way, like if it jiggles or turns into a chili pepper mid-act, she may consider patenting it. A copyright or trademark will not prevent someone from putting on their own phallic-fruit themed show during the Banana Festival, so long as it does not use the same (or a substantially similar) name or logo. Another performer may also create a similar banana prop, so long as she does not copy the same movements used by the copyright holder, or infringe on any patent. In all cases, the performer should consult her local friendly intellectual property lawyer.