Can I Trademark My Dance?

This is an approximate transcript of my video Can I Trademark My Dance? found on YouTube. In this blog when we talk about needing to obtain a copyright or trademark, we are talking about obtaining federal registration from the US Copyright Office at copyright.gov or the United States Patent and Trademark Office at uspto.gov

Good evening! We are back with Thursday Thoughts. For those of you who are new to my page my name is Adjckwc O. Browne Esquire. I am the founder of Browne Law and we are doing Thursday thoughts. This is a quick ten-minute live where I answer questions that are posed to me. I usually post them on Wednesday (@abrowneesq or @brownelaw.llc on IG) and then come on and answer them on Thursday.

Today’s questions is: Can I trademark my dance?

So, the short answer is no. The short answer is no, but the beauty of the law is that there’s always exceptions and there is usually a long answer that has both pro’s and con’s.

 So, the question today is can I trademark my dance? The short answer to that question is no, however you are able to trademark the name of a dance. If you are able to successfully protect the name of a dance then you can prevent others from using that name in any other fashion. One of the reasons why primarily you are not able to trademark a dance is because trademark is used to indicate the source of goods. When we get a trademark it is basically saying when I go in to the marketplace to buy something there is a brand name associated with it and then that gives the customer a sense of whatever it is that they associate with that brand whether it be quality, timeliness, and or longevity of the product. Dance wouldn’t necessarily fall into that category, however, while this is true like I said you before you can trademark the name of a dance. Some examples of this would be like Tebowing®. You’ll see this as a registered trademark. Or Kaepernicking®, which is also a registered mark. Both of those are instances of professional athletes who are known for signature end zone moves and they have trademarked the name of those moves. You are able to copyright your dance which can increase your monetary value in the market. If you are an artist and you choreograph dances and you have those copyrighted then you have the right to then license them out to others, prevent others from using it or reproducing it, or showing the visualization of your dance in any medium. Like I always say ownership is everything. When it comes to anything that you have created out of the thoughts of your mind and then put into some tangible form, you want to make sure that not only did it come from you but that you own it. With copyright one of the important things to know is that you own ie you have a copyright upon creation. So, you have the right to say hey don’t use that it’s mine as soon as you create something intangible form when it comes to copyright. However, pursuant to a fairly recent (maybe in the last two years Fourth Estate Public Benefit Corporation vs. Wall-street.com) Supreme court decision you are not going to be able to sue anyone or get damages from anyone from infringing on those rights (trampling over those rights and using your work anyway) without a registered copyright. If you are a choreographer and have a copyright and you register it then you can get not only damages for someone trampling over your right by using it or reproducing it or pretending that it’s their own, you can get several additional damages which are available when you register a work immediately after creation.

I would suggest that as you are in the process of creating this work or at the same time /simultaneously as you are ready to release the work also file for copyright registration.

The thing with dance and copyright is that there are some specific rules around it. In order to register a dance it must be an original work, It needs to be something that you can either annotate (Laban’s notation) or describe with significant detail. That is to say, both the composition and arrangement are original and you can describe it. There are specific ways to accomplish this and if you are a professional dancer or choreographer then you know about those annotations but just for short you have to be able to describe it in detail and then the composition and arrangement should be original. Ultimately it is the last part that is a little tricky. It (the dance to be registered) can’t be a line dance or something that is meant for people to copy and do over and over again. Examples of these are The Waltz or The Electric Slide. It needs to be something that is intended to be performed by professionals in front of an audience. Those are the regulations around copyrighting (registering a copyright) dance, If you are looking for more information on that obviously you can reach out to my firm. We would be happy to help you. Also, if you are a researcher and you like to gather information on your own go to copyright.gov and look for circular 52. It details everything that I’ve described specifically around copyright and dance.

That about covers it. Again, the question for today was can I trademark a dance? The answer is no, but you are able to trademark the name of a dance and you are also most importantly able to copyright the choreographed work that is unique and original to you. Believe me, it is worth it because you can command a price for someone to be able to use it (your registered work), you can prevent others from using it.  There are just so many things that owning that right by registering (because you own it when you create it) that legal ability to tell someone to stop and take them to court and to get money damages if they don’t is significant. I urge you to do that. Don’t neglect to take all the beautiful work you’ve created and make sure that you’re legally covered in ownership terms. That is it. Next week I am going to endeavor to explain what an NFT is and how it relates to intellectual property for artists and dancers and musicians (all art forms) and how you can capitalize on it and why you should even care. Thank you so much for giving a listen.

A. Browne, Esq. © 2021 All Rights Reserved.