Thing 000783 (The Nutcracker: A Story and A Ballet)

On December 18, 1892, the ballet The Nutcracker was given its premiere at the Mariinsky Theatre in Saint Petersburg choreographed by Marius Petipa and Lev Ivanov with a music score by Pyotr Ilyich Tchaikovsky. The libretto of the ballet was an adaptation of a 19th century folk tale by E.T.A. Hoffmann, called The Nutcracker and the Mouse King. In 1954 Balanchine choreographed his own version of the ballet The Nutcracker, set to music by Tchaikovsky. In 1954 The New York City Ballet gave its first performance of George Balanchine’s staging of The Nutcracker. It has been performed by the New York City Ballet Company each Christmas season since and has become a classic. In December 1981 Balanchine registered his claim to copyright in the choreography of The Nutcracker with the United States Copyright Office.

In 1985 the book The Nutcracker: A Story and A Ballet was published in New York by the editor Macmillan for Atheneum. Ellen Switzer wrote the texts and Steven Caras and Costas took the photographs. The book describes in text and photographs the Tchaikovsky ballet, the Hoffmann story on which it was based and the New York City Ballet’s version of The Nutcracker, choreographed by George Balanchine.

In March 1985 Macmillan sent proofs of the book to Lincoln Kirstein, the artistic director of the New York City Ballet. He passed it on to Barbara Horgan, executor of George Balanchine’s estate. On April 3, 1985, estate representatives notified MacMillan that they objected to publication. Barbara Horgan claimed that the 61 color photographs inside the book were an infringing derivative work of the choreography. Macmillan argued that a photo couldn’t reproduce a movement. On November 19, 1985, the court case Horgan v. Macmillan was heard in United States district court. Judge Owen held that:

[C]horeography has to do with the flow of the steps in a ballet. The still photographs in the Nutcracker book, numerous though they are, catch dancers in various attitudes at specific instants of time; they do not, nor do they intend to, take or use the underlying choreography.

The court held that the photographs in the book were not an infringement of Balanchine’s choreography and permitted the publication. Barbara Horgan appealed the decision. On April 28, 1986, the court case Horagn v. Macmillan was heard at the United States Second Circuit. Judge Feinberg held that:

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. [...] 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. [...]

The court reversed the previous decision, concluded that the photographs were substantially similar to the ballet and remanded the case.