Originally published by Nate Robson.
Originally published by Academic Support.
At my law school, we’re in the midst of the first week of classes after the long break. It seems like there’s no time to pause. Everyone’s busy and bustling; places to go and people to see. In fact, sometimes…
Originally published by Kacy Miller.
Budweiser’s “Puppy Love” Super Bowl XLVIII commercial.
One of my favorite Super Bowl commercials is Budweiser’s “Puppy Love” (2014), an adorable tale of a Labrador puppy and a Clydesdale who become best friends. If you don’t immediately know what I’m talking about, hop on YouTube right now and take a quick peek.
What, you may be asking, do adorable puppies and Budweiser have to do with the art of lawyering? That’s easy: persuasion.
Budweiser (well, its ad agency, most likely) masterfully used something called the AIDA method—a cornerstone of marketing—in hopes of persuading us to purchase its beer:First, they grabbed our attention (Who doesn’t love a puppy?), Then, they maintained our interest (We wondered what would happen to the puppy), They tapped into a desire or feeling (happiness/lump in throat/concern), and finally, They hoped our feelings would cause us to act (putting a six-pack of Bud into the shopping cart).
The AIDA method, so effective in selling everything from beer to Chryslers, is equally applicable to lawyers.
As a jury consultant, I focus largely on persuading juries, judges and arbitrators. But even for those rarely inside a courtroom, persuasion is still an important skill. Almost every aspect of lawyering involves some degree of persuasion: pitching a prospective client, negotiating settlement terms, rallying colleagues to vote for your favorite partner candidate, and, of course, motivating the jury to render a verdict favoring your client.
Here are a few ways to incorporate AIDA into everyday persuasion:
Research suggests it takes us seven seconds to size someone up. You literally have mere seconds to convince whoever you’re trying to persuade that whatever you’re “selling” is worth their continued attention. Yikes.
Don’t waste the first few precious moments of a speech, pitch or opening statement with platitudes and credentials. In some circumstances, this applies to written product, too. Don’t be afraid to think outside of the box; start with a bang and grab people’s attention from the get-go — but don’t go rogue. If you are completely off the reservation, people could decide that you’re weird, question your credibility and disengage, which kills your persuasive power.
Most presentations aren’t true give-and-take conversations, but participants still want to feel included and part of the process.
The trick is to get them to mentally participate. Engage their brains throughout your presentation (or writings) by asking rhetorical questions, asking for a show of hands, putting a multiple-choice question on the screen or simply asking folks to imagine a scenario to retrieve a memory. When listeners are able to reflect upon their own personal or professional experiences, they are much more inclined to care about what you have to say. Which means they’re more interested in your message than their iPhone and email.
Combining your personal stories with small doses of statistics or narrative evidence will help validate your content. And the more valid your content, the more persuasive you are. Sharing a war story, a challenge you’ve overcome or a hypothetical scenario not only includes your audience and makes things interesting, but also it sets the stage for the substantive content you want to share, such as case law, verdict research, industry trends, statistics, or evidence.
I dare you to find an audience outside or inside the courtroom that doesn’t expect technology during a presentation. Juries and judges expect graphics and digital display of documents, so programs like “Trial Director” are (in my opinion) on the don’t-leave-home-without-it list.
Visuals are a vital element of persuasion even when you’re presenting a conference speech or a pitch to a small group.
The most persuasive visuals are simple, concise and memorable. Nobody is going to remember 50 words on a page, but they will remember a graphic image, key phrase or a few essential takeaways. Less is truly more.
But hear me loud and clear: PowerPoint slides are not a substitute for effective communication. The primary messenger should always be the speaker, not the screen. If your slides are more compelling than you are, you are no longer perceived as someone with an important message; you are simply a person with a clicker.
You’ve invested a ton of sweat equity in creating great content, but to truly maximize your persuasive power, you must allocate time to practice. And I don’t mean reading over your notes on the way to the courthouse or thinking about what you’ll say during your commute. I literally mean practicing your speech out loud and on your feet. More than once.
Yes, it feels dorky to walk around the room talking to yourself, but a recent study showed a significant memory advantage to saying words out loud and hearing them in your own voice. So, practicing out loud not only helps you remember the content, it also helps you fine-tune your delivery, which builds confidence. And confident, prepared speakers are more persuasive speakers.
One of the most basic and most powerful human needs is to connect with others and create a sense of fellowship, even if only for 30 minutes. To speak to others—to share your knowledge, to try to influence them in some way—is to reveal something of yourself, and that can be a tad scary.
But, when done well, it can be a powerful experience both for the speaker and for the audience.
Originally published by Thomas A. Greenwald.
If you are contemplating filing for divorce, or if have a divorce pending, you may be concerned about how a government shutdown will affect your cashflow and investments. The good news is that the economic impact, overall, is likely to be small. In late 2013, a similar government shutdown, spanning 16 days, trimmed overall… Read More
The post How will the Government Shutdown affect my Divorce? appeared first on GoransonBain Ausley.
Originally published by Brett Holubeck.Photo by rawpixel on Unsplash
Getting an unfair labor practice charge against you
can be confusing. Let’s start with the basics.
An unfair labor practice charge is filed by an employee or a union with the National Labor Relations Board alleging that an employer or a union violated the National Labor Relations Act. The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (otherwise known as protected concerted activity). It is illegal for a company to discipline or fire someone because they engage in protected concerted activity.
Some of the most common violations that employers
You can read more about other ways that the NLRA
protects employees in one of my earlier posts.
If you do not violate the law, then it is less likely,
although not impossible, that an employee or a union will file an unfair labor
practice charge. Employees can and do file frivolous lawsuits and unfair labor
The best way to avoid an unfair labor practice charge
is to train your managers, supervisors, and HR staff on what they can and
cannot do. The easiest way to remember what can and cannot be done is to remember
Employers cannot threaten employees with any adverse
action (discipline, termination, reducing pay) because they support a union or
engage in protected activity. Companies cannot interrogate employees on whether
they support a union. Employers cannot promise employees benefits or better pay
to encourage employees to stop supporting a union. Finally, employers cannot
spy on employees that are engaging in union or protected activity (like having
a meeting offsite about whether employees should join a union).
So, what happens when you have an unfair labor
practice filed against you?
has a chart that shows exactly what happens. Let’s review the steps
before a hearing occurs.
Companies need to act fast when they receive an unfair
labor practice charge from the NLRB. Obviously, employers should seek legal
counsel if they are not represented. To
respond companies should:
Austin explains the basics of what employers need to do to speak
to employees in these situations:
Specifically, Johnnie’s Poultry allows questioning of employees only after the employer’s representatives:
1. communicate to the employee the purpose of the questioning;
2. assure the employee that no reprisals will take place for refusing to answer any question or for the substance of any answer given; and
3. obtain the employee’s participation in the interview on a voluntary basis.
Basically, employers need to let the employee know that they are interviewing the employee because of the incident within the unfair labor practice charges. Employers must inform the employee that they will get no benefit or punishment from speaking with the employer or the employer’s attorney. Finally, the interview is voluntary and can be stopped at any time. Employers should never speak with the charging party (the person that made the accusations) about the incident. None of this applies to members of management or human resources.
The NLRB will typically wish to speak with the members of the management team that are alleged to have committed the offenses committed by the company. Most employers benefit from conducting their own careful investigation of the events before they allow the NLRB to interview their employees.
As part of the investigation, the NLRB will seek to take affidavits or statements from management witnesses. Companies have a right to have an attorney present for all witnesses that are members of management or human resources staff (agents of the company) but attorneys cannot be present for any affidavits taken from employees that are not members of management. Employers cannot stop employees that are not members of management from speaking with the NLRB.
Employers have a few options when it comes to determining whether to provide management witnesses. They can:Refuse to provide any information to the investigator. This will usually result in a complaint being issued against the company because the only evidence will be from the charging party. Employers may wish to do this if they believe that this will go to a hearing because the NLRB will ultimately issue a complaint. Companies also need to be aware that the NLRB will often share information with the charging party. The NLRB rarely seeks an investigative subpoena to force the employer to provide information, so it is likely that you will be facing a complaint that will include all of the allegations from the charging. Call the investigator and orally discuss the company’s position but refuse to make management witnesses available for affidavits or to provide any documents. Provide the management witnesses for affidavits and have an attorney present to assist witnesses. If an employer plans to do this, then it should also file a statement of position explaining its defenses before the affidavits are taken.
The affidavits are incredibly important to help the NLRB determine what happened. If something is said incorrectly in an affidavit, then the opposing party will use that against a company should the case go to a hearing. The NLRB or the union (if they are the charging party) will impeach company witnesses with incorrect statements. It looks a bit like this scene from My Cousin Vinny, but with documents. No company wants this to happen to its witnesses, which is why preparation for an investigation is crucial.
Each witness and any attorneys present can review the
affidavit that the NLRB takes. The NLRB takes affidavits using a computer, so errors
that a witness or their attorney find should be redone to make a clean copy of
the affidavit. Be sure to ask the investigator to do this.
Witnesses must be careful that the NLRB agent does not pin a witness down with statements like “I spoke with no other individuals about the incident.” A witness may remember more information later, so be careful of statements that lock a witness into a position unless the witness is absolutely sure that they will not remember more information later.
If the investigator does not ask a question or get
information that a witness believes is necessary for the investigation, then they
should speak up and get the information into the affidavit. The affidavit is
your chance to provide any information that will be helpful to the employer’s
Once the affidavits are completed, the employer should
consider providing an additional statement of position concerning the facts of
the case. This will be the last chance to state its position and defense before
the NLRB reaches its conclusion on the unfair labor practice charge.
Once the NLRB makes a determination, then it will either
dismiss all of the allegations (i.e. the employer/defense wins) or the charging
party will withdraw the charge, dismiss some of the allegations, or dismiss none
of the allegations. If the NLRB dismisses all of the allegations, then there is
nothing left for the employer to do. If the NLRB dismisses some but not all of
the allegations or none of the allegations, then it will be time to consider
settlement. Each case is unique, so the best option is a fact specific
determination that will need to be carefully discussed.
Responding to an unfair labor practice charge from the NLRB is difficult, but there are a number of things that employers can do to respond. Employers must investigate allegations of unfair labor practices carefully before they decide the proper approach for their company.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
The post Responding to an NLRB Unfair Labor Practice Charge appeared first on Texas Labor Law Blog.
Originally published by Seyfarth Shaw LLP.
Seyfarth Synopsis: In another business-friendly move, the U.S. Department of Justice (DOJ) recently updated its Justice Manual to clarify that it “should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations [or to] establish a violation by reference to statutes and regulations.”
We had blogged in early 2018 regarding Associate Attorney General Rachel Brand’s memorandum “Limiting Use of Agency Guidance Documents In Affirmative Civil Enforcement Cases.” (Brand Memo), which indicated that the Department would no longer prosecute cases based solely on violations of various agencies’ “guidance documents”. Now DOJ has taken it a step further by adding a section to its Justice Manual (Manual) titled: “Limitation on Use of Guidance Documents in Litigation..” The new section was effective in December 2018.
Under the updated Manual, DOJ (which effectively acts as “outside counsel” to departments and agencies including the DOL, EPA, OSHA, ATF and DEA, among others, in cases exceeding certain penalty thresholds and other criteria) may no longer prosecute cases against alleged violators unless the violations are of properly promulgated (through “notice and comment” rulemaking) regulatory requirements, not agency guidance documents or policies.
The Brand Memo itself was a follow-up to an earlier memo issued by Attorney General Jeff Sessions on November 16, 2017 (Sessions Memo), which instituted a new policy that prohibits the Department of Justice from using its civil enforcement authority to convert agency guidance documents into binding rules. The Sessions Memo “prevent[ed] the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations. In the past, the Department of Justice and other agencies had blurred the distinction between regulations and guidance documents.”
Under the DOJ’s new policy, DOJ civil litigators are “prohibited from using guidance documents—or noncompliance with guidance documents—to establish violations of law in affirmative civil enforcement actions.” The Brand Memo also indicates that “the [Sessions Memo]. . . prohibits the Department from using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.” Finally, the Brand Memo confirms that the DOJ “…should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”
While the Brand Memo applied only to affirmative civil enforcement actions brought by the DOJ, we see the updated Manual, Sessions Memo and the Brand Memo as welcome relief from arbitrary use of guidance by departments and agencies such as the DOL, OSHA, or EPA in enforcement proceedings of regulated industry.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth OSHA Compliance, Enforcement & Litigation Team or the Environmental Compliance, Enforcement & Permitting Team.
Originally published by David Coale.
Two recent opinions set the current guideposts for whether an issue is tried by consent. On the one hand, a recent post described the Fifth Court’s reasoning in Avelar v. Nunez, No. 05-17-00631-CV (Nov. 20, 2018) (mem. op.), which found no consent to a particular damages element from a cross that related to earlier-pleaded damages theories. On the other, there is BB&T Co. v. Seideman, which observed:
“In this case, the Bank’s claims against L&S and the guarantors were based on the loan
documents. The Note, the statute of frauds notice, and the guaranties were admitted into evidence without objection. Holmes, Brian, Robert, and Seideman testified about the statute of frauds notice and the lack of a written agreement modifying the terms of the Note or the guaranties. Both parties argued to the trial court about the effect of the statute of frauds and the contractual waivers on L&S’s and the guarantors’ affirmative defenses and responded to the trial court’s questions on both issues. L&S and the guarantors did not object to the evidence, the arguments, or the trial court’s questions on the ground they related to an issue not pleaded by the Bank. We therefore conclude the issue of whether the statute of frauds or the contractual waivers precluded L&S and the guarantors from relying on any of the pleaded affirmative defenses was tried by consent.”
No. 05-17-00381-CV (June 21, 2018) (mem. op.)
Originally published by Kunal Patel.
According to the IRS, foreign trusts are a major compliance issue:
Citizens and residents of the United States are taxed on their worldwide income. To help prevent the use of foreign trusts and other offshore entities for tax avoidance or deferral, Congress has enacted several specific provisions in the Internal Revenue Code. Some provisions trigger recognition of gains that would otherwise be deferred. Others deny deferral of tax on income moved offshore.
A specialized industry has developed in attempting to circumvent these provisions. The promoters of offshore schemes often advance technical arguments which purport to show that their scheme is legal. These arguments are used to provide some comfort to their clients, who are then induced to enter into a scheme which usually involves concealing the true ownership and control of assets and income.
The foreign trusts rules in I.R.C. 671-679 are some of the most complex set of rules in the tax code. Foreign trust tax compliance typically pose three challenges: 1.) properly defining the type of entity, and 2.) financial and tax reporting of foreign trust assets 3.) and reporting of trust income and distributions. This article will discuss the first two.
The Regulations define a trust as an arrangement created by either a will or inter vivos declaration whereby trustees take title to property for the purpose of protecting or conserving it for the beneficiaries.
An arrangement will be treated as a trust if it can be shown that its purpose is to vest in trustees responsibility for the protection and conservation of property for beneficiaries who cannot share in the discharge of this responsibility and, therefore, are not associates in a joint enterprise for the conduct of business for profit.
An entity created to operate a business rather than to protect or conserve assets is not recognized as a trust for U.S. tax purposes. Instead, entities conducting business activities are more properly classified as business entities.
Where a trust exists solely for tax avoidance purposes, it is an “abusive trust arrangement” or “sham” whereby the IRS may ignore the purported form for U.S. tax purposes.
A trust is considered to be a foreign trust unless it meets both of the following tests: the Court Test, and the Control Test
A trust meets the Court Test if a court within the United States can exercise primary supervision over the administration of the trust.
The Court Test has a “safe harbor” rule that is satisfied if:The trust instrument does not direct that the trust be administered outside of the U.S.; The trust is administered exclusively in the U.S.; and The trust is not subject to an automatic migration provision.
A trust meets the Control Test if one or more United States persons have the authority to control all substantial decisions of the trust with no other person having the power to veto any of the substantial decisions.
Determining whether a trust is a grantor or non-grantor trust is important because it affects who is taxed on the income of the trust and when they are taxed. The consequence of grantor trust status is that the trust is generally not recognized as a separate taxable entity. Instead, the grantor continues to be treated as the owner of the property transferred to the trust and all items of trust income, gain, deduction, loss, and credit are reported directly by and taxable to the grantor.
A non-grantor trust, on the other hand, is recognized as a separate taxable entity. That is, in general, a non-grantor trust will be liable for tax on any income (including capital gains) that it retains, while to the extent the non-grantor trust distributes income to its beneficiaries, the beneficiaries will be liable instead.
I.R.C. §§ 673-679 contain various rules for determining whether an entity is a grantor trust.
I.R.C. § 679 takes precedence over the rules. IRC §679 was designed to prevent U.S. taxpayers from achieving tax-free deferral by transferring property to foreign trusts. A foreign trust that has U.S. beneficiaries will be treated as a foreign grantor trust under IRC §679 to the extent a U.S. person has gratuitously transferred property to it.
Under § 673-677, a U.S. person who is the grantor of a foreign trust will be treated as the owner of all or a portion of the trust if the grantor retains certain interests in or powers over the trust. In general, these interests and powers include:a reversionary interest worth more than 5 percent of the total value of the portion to which the reversion relates, certain powers of disposition over the trust property that are generally exercisable in favor of persons other than the grantor, certain administrative powers that allow the grantor to deal with the trust property for his or her own benefit, a power to revoke the trust, and a right to the present possession, future possession, or present use of the income of the trust.
Finally, § 678 applies if a person, other than the grantor, has a power to appoint trust income or corpus to himself or herself. That person is deemed to be the owner of all or a portion of the trust, provided the grantor is not otherwise treated as the owner of all or that portion of the trust.
Form 3520, Annual Return to Report Transactions with Foreign Trusts. Form 3520 is due on the date your income tax return is due, including extensions. It is filed separately from your income tax return. The penalty for failure to file a Form 3520 is equal to the greater of $10,000 or 25% of the gross value of any property transferred to a foreign trust for failure by a U.S. transferor to report the creation of or transfer to a foreign trust.
A Form 3520 is required in circumstances such as where a U.S. person:Creates or transfers money or property to a foreign trust Receives (directly or indirectly) any distributions from a foreign trust Is treated as the U.S. owner of a foreign trust
Form 3520-A, Annual Information Return of Foreign Trust with a U.S. Owner. In addition to filing Form 3520, each U.S. person treated as an owner of any portion of a foreign trust under the grantor trust rules is responsible for ensuring that the foreign trust files Form 3520-A and furnishes the required annual statements to its U.S. owners and U.S. beneficiaries.
Form FinCEN 114, Report of Foreign Bank and Financial Accounts (“FBAR”). The FBAR is required to be filed annually by “each United States person having a financial interest in, or signature or other authority over, a bank, securities, or other financial account in a foreign country.”
A person who is required to file an FBAR and fails to properly file may be subject to a civil penalty not to exceed $10,000 per violation. A person who willfully fails to report an account or account identifying information may be subject to a civil monetary penalty equal to the greater of $100,000 or 50 percent of the balance in the account at the time of the violation.
If you are required to file an FBAR, you must file it with the Department of Treasury by April 15th of each tax year. It is automatically extended to October 15 if you file an extension for your individual income tax return.
Beneficiaries: FBAR filings on FinCEN Form 114 are generally required to be made by U.S. persons who have reportable financial interests in or signature authority over a foreign financial account (“FFA”). A U.S. person who has more than a 50% present beneficial interest in a trust’s income or assets may be deemed to have an FFA interest and may be required to make an FBAR filing. A beneficiary of a foreign non-grantor trust is exempt from FBAR reporting if a trustee who is a U.S. person makes an FBAR filing disclosing the trust’s FFAs and provides information as required.
Trustees: A U.S. trustee of a foreign trust generally has signature authority over and/or a financial interest in the trust’s foreign accounts and thus, must file the FBAR form.
Form 1040, Schedule B. Part III, Foreign Accounts and Trusts must be completed if you receive a distribution from, or were grantor of, or a transferor to a foreign trust. Further, if as a trustee or beneficiary you have more than 50% beneficial interest or signature authority over trust (or personal) accounts exceeding $10,000 in the aggregate, you must indicate as such under Part III.
Form 8938, FATCA. The “FATCA” (Foreign Account Tax Compliance Act) provisions require specified individuals to report ownership of specified foreign financial assets if the total value exceeds the applicable reporting threshold. Form 8938 is due on the date your income tax return is due, including extensions. It is filed with your income tax return. Failure to report foreign financial assets on Form 8938 may result in a penalty of $10,000, and a penalty up to $50,000 for continued failure after IRS notification.
An interest in a foreign trust or a foreign estate is not a specified foreign financial asset unless you know or have reason to know based on readily accessible information of the interest. If you receive a distribution from the foreign trust or foreign estate, you are considered to know of the interest.
For a beneficiary of a foreign trust, the maximum value of your interest in the trust is the sum of 1.) the value of all of the cash or other property distributed during the tax year from the trust to you as a beneficiary, and 2.) the value using the valuation tables under section 7520 of your right as a beneficiary to receive mandatory distributions as of the last day of the tax year.
Furthermore, to alleviate the burden of duplicative tax reporting, an specified financial asset is not required to be reported on Form 8938, if that it is reported on another international information return, such as Form 3520, Form 5471, Form 8621, or Form 8865.
Originally published by Charles Wallace.
Many of us know that “authors” can seek federal copyright protection, and many of us also know that “common law” copyright protection exists the moment a copyrightable work is created, but not many people understand what an “author” is within the meaning of the Copyright Act. An author does not need to be a writer or a painter — an author is simply the creator of an original expression in a work. Section 102 of the Copyright Act explains that copyright protection exists in the following categories:literary works; musical Works, including any accompanying words; dramatic Works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.
Numbers 1, 2, 5, 6, and 7 are pretty straight-forward, and many of us have seen messages telling us that copyright law protects written works, music, pictures, and movies. The other areas are less-known — particularly that a series of body movements can actually be copyrighted. This has not always been the case, however. Prior to the Copyright Act of 1976, choreography was not copyrightable subject matter, and the only way a choreographer could obtain protection against an unauthorized performance was to try and register the dance as a “dramatic composition.” The choreography had to, in a sense, tell a story, portray character, and depict emotion in order to be afforded protection.
Today, in order to be eligible for copyright protection, a choreographed dance must have been entirely originated by the author and must contain at least a small amount of creativity. This threshold is relatively low, so as long as a choreographer creates a choreographed routine of more than a couple moves and steps without copying another’s work.
Although Loie Fuller sued another dancer for performing her “Serpentine Dance” choreography in 1892, and Anne Teresa De Keersmaeker accused Beyoncé of stealing several of her ballet moves in 2011, historically choreographers have not aggressively sought to enforce their rights when it comes to others infringing their choreography.
Recently, however, Big Freedia filed a federal lawsuit against her former choreographer Wilberto Dejarnetti, seeking a declaration that she owns the choreography for seven dances the two worked on together. Similarly, rapper 2 Milly recently exposed video game developers Visual Concepts and Epic Games for incorporating his viral dance, the “Milly Rock,” into their games — NBA 2K18 and Fortnite, respectively. Visual Concepts includes the Milly Rock as a randomly occurring component of the NBA 2K18 game, but Epic Games designed the Milly Rock (or the “Swipe It,” as it is called in-game) to be an “emote” that can be purchased by Fortnite players for real money as of the Season 5 update. Similarly, Rapper BlocBoy JB recently exposed Epic Games for incorporating his “Shoot Dance” (made famous in 2017 when it was incorporated in Drake’s music video “Look Alive”) into the Fortnite Season 4 update (calling the dance “The Hype”).
So what is all the hype, after all? Why are some artists so worked up about others copying their dance moves? How does this notion of protecting choreography promote copyright law’s purpose of promoting the progress of science and useful arts? These issues implicate a series of questions that must be considered in turn when determining whether a choreographed work can be afforded copyright protection: (1) is the dance original, (2) is the dance “fixed” in a “tangible medium of expression,” (3) is the dance adequate to qualify as protectable choreography under the Copyright Act, and (4) does the choreographer legally own the dance moves?
The first question is easily answered — either the choreography is original or it is copied. Original expression is protectable, and copied material, without more, is not.
The “fixation” into a “tangible medium” requirement is also easily met, as many choreographers use their own unique form of written shorthand, or “labanotation,” to record the nature, structure, sequence, and timing of movements. Additionally, a choreographer can “fix” the sequence of movements into a tangible form by recording a video of the movements.
The Copyright Act does not protect a single dance move, but it does protect “choreographic works” — meaning a choreographer must include a series of more than just a couple steps or moves in order to qualify for copyright protection. Copyrighting individual steps would not advance copyright law’s purpose of promoting the progress of science and useful arts because such would afford choreographers a monopoly in single movements — thus severely limiting the scope of creativity in future choreographers. Dance would cease to exhibit a series of polished, recognizable moves and would evolve into an amalgam of unconventional, eccentric chaos (although this is an interesting visual). Dance would, in essence, cease to be “dance.” Thus, in order for a choreographed dance to be eligible for copyright protection, a number of dance movements and patterns must be combined into an expressive whole. Although there still exists the ethical dilemma that a particular dance “move” could be diluted or disassociated with the originating performer, this is not a consideration that the Copyright Act currently contemplates.
Oftentimes, choreographers work with directors or producers in creating a show that incorporates the choreography into a number of other elements. The essential question in these situations is whether the choreography was developed as a “work made for hire” or as a work by an “employee.” When the choreography is created in the normal course of regular employment, it is considered a “work made for hire,” and the employer enjoys authorship of the work rather than the employee who created it. However, when a choreographer is specially commissioned to choreograph particular dances, then the work is not considered a “work made for hire” unless there is a signed written agreement expressly stating that the work is a “work made for hire.”
There are a number of legal issues to consider when deciding whether a choreographer enjoys copyright protection in a choreographic work. As we see more and more infringement allegations pertaining to choreographic works pop up in the media, perhaps game developers, performers, and other choreographers will begin to be more cognizant about whether a particular move can and should be used. The best rule of thumb is to avoid stepping on anyone else’s toes — stick to the moves you know.