Macmillan, Inc.

789 F.2d 157

United States Court of Appeals,
Second Circuit

April 28, 1986


FEINBERG, Chief Judge:

This appeal presents the novel question whether still photographs of a ballet can infringe the copyright on the choreography for the ballet. Barbara Horgan, executrix of the estate of the renowned choreographer George Balanchine, appeals from a judgment of the United States District Court for the Southern District of New York, Richard Owen, J., denying her motion for a preliminary injunction. Appellant Horgan sought to enjoin the publication of a book entitled "The Nutcracker: A Story & a Ballet," which portrays, in text and photographs, the New York City Ballet Company's production of The Nutcracker ballet, choreographed by Balanchine. Defendant Macmillan is the publisher, and defendant Ellen Switzer the author, of the book; defendants Steven Caras and Costas provided the photographs. The district court held that the book did not infringe Balanchine's copyright because choreography is the flow of steps in a ballet, which could not be reproduced from the still photographs in the book. 621 F.Supp. 1169 (S.D.N.Y.1985). The court also found that the estate had delayed unduly in seeking relief. We conclude that the district court applied the wrong legal standard for determining whether the photographs infringe the copyrighted choreography, and we remand for reconsideration utilizing the correct standard. We strongly suggest that any further hearing on the preliminary injunction be consolidated with consideration of the claim for permanent injunctive relief.


George Balanchine, who died on April 30, 1983, was director, ballet master and chief choreographer of the New York City Ballet, a company he co-founded in 1948 with Lincoln Kirstein, its present Artistic Director. It is undisputed that Balanchine was a recognized master in his field.1 In 1954, Balanchine choreographed his own version of the ballet The Nutcracker, set to music by Tchaikovsky. The ballet is an adaptation of a 19th century folk tale by E.T.A. Hoffman, "The Nutcracker and the Mouse King," and of a previous choreographic version of that fable by the Russian choreographer Ivanov. The parties disagree on the extent to which the "Balanchine Nutcracker," as it is commonly known, incorporates preexisting material by Hoffman and Ivanov. The Balanchine Nutcracker has been performed by the New York City Ballet Company each Christmas season for the last thirty years and has become a classic. Each year, all seats for all performances are sold out. The Nutcracker, we are told, is the nation's most commercially successful ballet. The Company paid Balanchine, and then his estate, a royalty each time The Nutcracker or any other Balanchine ballet was performed. Balanchine, and then his estate, also licensed other ballet companies to perform his ballets, and other media to reproduce them, for which he received either royalties or other consideration.

In December 1981, Balanchine registered his claim to copyright in the choreography of The Nutcracker with the United States Copyright Office. As part of his claim, he deposited with the Copyright Office a videotape of a New York City Ballet Company dress rehearsal of the ballet. Under Balanchine's will, which is presently in administration, all media, performance and other rights in The Nutcracker were left to certain named legatees, including Ms. Horgan, who was his personal assistant at the New York City Ballet for 20 years.

In early April 1985, appellant Horgan learned for the first time that Macmillan was planning to publish, under its Atheneum imprint, a book about the New York City Ballet/Balanchine version of The Nutcracker. Atheneum had sent galleys of a text and photocopies of photographs to Lincoln Kirstein, who gave the material to appellant. (Ms. Horgan continues to be employed by the New York City Ballet Company as Director of Special Projects.) According to appellees, the galleys and photocopies forwarded at that time were "virtually identical" to the final version of the book, published some six months later in October 1985.

The book is designed primarily for an audience of young people. The title page displays three black and white photographs of George Balanchine directing a rehearsal of the ballet. The book begins with a 15-page text by defendant Switzer regarding the origins of The Nutcracker as a story and as a ballet. The remainder of the book is introduced by a second title page, as follows:

As Performed by the Dancers of the New York City Ballet Company

The principal section of the book consists of 60 color photographs by Caras and Costas of scenes from the New York City Ballet Company production of The Nutcracker, following the sequence of the ballet's story and dances. The photographs are interspersed with Switzer's narration of the story, including those portions not portrayed visually. The final section of the book contains interviews with ten of the dancers, with black and white photographs of them out of costume. Defendants Switzer, Caras and Costas obtained this material through their access to company rehearsals and performances.  . . .

. . .


The principal question on appeal, whether still photographs of a ballet can infringe the copyright on the choreography for the ballet, is a matter of first impression. Explicit federal copyright protection for choreography is a fairly recent development, and the scope of that protection is an uncharted area of the law. The 1976 Copyright Act (the Act), 17 U.S.C. ' 101 et seq., was the first federal copyright statute expressly to include "choreographic works" as a subject of protection . . . .  Choreography was not mentioned in the prior law, the 1909 Copyright Act, 61 Stat. 652, and could only be registered, pursuant to regulations issued under that law, as a species of "dramatic composition." Dance was protectible only if it told a story, developed or characterized an emotion, or otherwise conveyed a dramatic concept or idea.  . . .

. . .

. . . By including choreographic works as a separate copyrightable form of expression, the 1976 Act broadened the scope of its protection considerably.

The Act does not define choreography, and the legislative reports on the bill indicate only that "social dance steps and simple routines" are not included.  . . .   Appellant claims that the Switzer book is a "copy" of Balanchine's copyrighted work because it portrays the essence of the Balanchine Nutcracker, or, in the alternative, that the book is an infringing "derivative work" . . . . The test for infringement, appellant asserts, is not whether the original work may be reproduced from the copy--as the district judge held--but whether the alleged copy is substantially similar to the original. Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966).

In response, appellees assert that the photographs in the Switzer book do not capture the flow of movement, which is the essence of dance, and thus cannot possibly be substantially similar to the choreographic component of the production of the ballet. Appellees rely on the various definitions of choreography in Compendium II . . . to support their position that the central characteristic of choreography is "movement." According to appellees, since each photograph in the book captures only a fraction of an instant, even the combined effect of 60 color photographs does not reproduce the choreography itself, nor provide sufficient details of movement to enable a choreographic work to be reproduced from the photographs.

Appellees also argue that little, if anything, of Balanchine's original choreographic contribution to the New York City Ballet production of The Nutcracker is shown in the photographs. That production, they contend (and appellant does not disagree entirely here), is based on extensive preexisting material by Hoffman and Ivanov that is in the public domain and not subject to copyright. According to appellees, the Switzer book is composed primarily of a combination of material in the public domain and the special non- choreographic aspects of the New York City Ballet production--the costumes by Karinska and the sets by Rouben Ter-Artunian, both produced under licensing agreements between those artists and the Company. Appellant makes no claim to those components of the production, and appellees assert that the choreography--even if it were conveyed by the photographs--is visually indistinguishable from the integrated whole of the production. Appellees thus argue that the book does not infringe any copyrighted or copyrightable choreographic material.


The question whether the photographs in the Switzer book infringe the copyright on Balanchine's choreography is not a simple one, but we agree with appellant that in resolving that issue the district court applied an incorrect test. The district judge found no infringement because the photographs catch only "dancers in various attitudes at specific instants of time," rather than "the flow of the steps in a ballet," and thus "[t]he staged performance could not be recreated" from the photographs.  . . .  However, the standard for determining copyright infringement is not whether the original could be recreated from the allegedly infringing copy, but whether the latter is "substantially similar" to the former.  . . .  The test, as stated by Judge Learned Hand . . . is whether "the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same."  . . .

When the allegedly infringing material is in a different medium, as it is here, recreation of the original from the infringing material is unlikely if not impossible, but that is not a defense to infringement. See, e.g., King Features Syndicate v. Fleischer, 299 F. 533, 535 (2d Cir.1924) (cartoon character infringed by toy doll); Filmvideo Releasing Corp. v. Hastings, 509 F.Supp. 60, 63-65, aff'd in part, rev'd in part, 668 F.2d 91 (2d Cir.1981) (books infringed by movies). It surely would not be a defense to an infringement claim against the movie version of "Gone With The Wind" that a viewer of the movie could not create the book. Even a small amount of the original, if it is qualitatively significant, may be sufficient to be an infringement, although the full original could not be recreated from the excerpt. See, e.g., Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503 F. Supp. 1137, 1145 (S.D.N.Y.1980), aff'd, 672 F.2d 1095 (2d Cir.), cert. denied, 459 U.S. 826 (1982), and Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741, 744 (S.D.N.Y.), aff'd, 623 F.2d 252 (2d Cir.1980). In the former case, short film clips used in a film memorial to Charlie Chaplin were held to infringe full length films . . . .   In the latter, the use of four notes from a musical composition containing one hundred measures was held sufficient to infringe the copyrighted original . . . .

Moreover, the district judge took a far too limited view of the extent to which choreographic material may be conveyed in the medium of still photography. A snapshot of a single moment in a dance sequence may communicate a great deal. It may, for example, capture a gesture, the composition of dancers' bodies or the placement of dancers on the stage. Such freezing of a choreographic moment is shown in a number of the photographs in the Switzer book . . . .  A photograph may also convey to the viewer's imagination the moments before and after the split second recorded. On page 76-77 of the Switzer book, for example, there is a two-page photograph of the "Sugar Canes," one of the troupes that perform in The Nutcracker. In this photograph, the Sugar Canes are a foot or more off the ground, holding large hoops above their heads. One member of the ensemble is jumping through a hoop, which is held extended in front of the dancer. The dancer's legs are thrust forward, parallel to the stage and several feet off the ground. The viewer understands instinctively, based simply on the laws of gravity, that the Sugar Canes jumped up from the floor only a moment earlier, and came down shortly after the photographed moment. An ordinary observer, who had only recently seen a performance of The Nutcracker, could probably perceive even more from this photograph. The single instant thus communicates far more than a single chord of a Beethoven symphony--the analogy suggested by the district judge.

It may be that all of the photographs mentioned above are of insufficient quantity or sequencing to constitute infringement; it may also be that they do copy but also are protected as fair use. But that is not what the district judge said in denying a preliminary injunction. The judge erroneously held that still photographs cannot infringe choreography. Since the judge applied the wrong test in evaluating appellant's likelihood of success on the preliminary injunction, we believe that a remand is appropriate. But since further proceedings in the district court will be necessary, we strongly suggest that the parties proceed promptly toward a final judgment on the merits upon an adequate record. The validity of Balanchine's copyright, . . . the amount of original Balanchine choreography (rather than Ivanov's) in the New York City Ballet production of The Nutcracker and in the photographs, and the degree to which the choreography would be distinguishable in the photographs without the costumes and sets (in which appellant claims no right) are all matters still to be determined, preferably on a fuller record including expert testimony, which we assume would be of considerable assistance.  . . .

. . .

We reverse and remand for further proceedings consistent with this opinion.


1 Balanchine has been described as a "genius" and as "an artist of the same magnitude as Picasso." B. Taper, Balanchine 8 (1974).