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

On December 18, 1892, The Nutcracker ballet premiered at the Maryinsky Theatre in Saint Petersburg. Pyotr Ilyich Tchaikovsky wrote the music score and Marius Petipa and Lev Ivanov did the choreography. George Balanchine danced in The Nutcracker as a young student at the Imperial Ballet School. The ballet’s libretto was based on a nineteenth-century story by E.T.A. Hoffman, called The Nutcracker and the Mouse King. The tale had been adapted by Alexander Dumas as a children story. In the tale, young Marie Stahlbaum’s favorite Christmas toy the nutcracker comes alive and defeats the evil mouse king in battle. After this, the nutcracker whisks Maria away to a magical kingdom populated by dolls.

On February 2nd 1954, George Balanchine, the director of New York City Ballet, staged his version of The Nutcracker. Rouben Ter-Arutunian designed the scenery and lighting and Barbra Karinska made the costumes. It was a very successful ballet and has since been performed by the New York City Ballet Company at Lincoln Center during every Christmas season. In December 1981, Balanchine registered his copyright for the choreography of The Nutcracker with the United States Copyright Office. He deposited a videotape of the dress rehearsal of the ballet by New York City Ballet Company. His application didn’t mention Hoffman’s story nor Marius Petipa’s and Lev Ivanov’s ballet. On April 30, 1983, George Balanchine died. In his will, Balanchine left all of the rights to Barbara Horgan, who was his personal assistant at the New York City Ballet for 20 years.

In 1985, the editor MacMillan put together the book The Nutcracker: A Story & A Ballet for the publisher Atheneum. The book was primarily made for children. Ellen Switzer wrote the texts and Steven Caras and Costas, New York City Ballet Company’s “house” photographers, took the photographs. The book contains four parts. The first part recounts Hoffmann’s story The Nutcracker and the Mouse King on which the ballet was based. The second part tells the history of The Nutcracker ballet. The third and largest section is devoted to New York City Ballet Company’s version choreographed by George Balanchine. The third section of the book includes 61 color photographs that Caras and Costas took during a dress rehearsal with the permission of the New York City Ballet. And the fourth part includes interviews with dancers about their characters.

In March 1985, MacMillan, the publisher of the book, sent proofs of The Nutcracker: A Story & A Ballet to Lincoln Kirstein, the artistic director of New York City Ballet. She passed it on to Barbara Horgan, executrix of George Balanchine’s estate. On April 3, 1985, estate representatives notified MacMillan that they objected to publication of what they considered a derivative work based on Balachine’s choreography. Following this, a dispute arouse between Horgan and Macmillan around the 61 color photographs in the book. On May 10, 1985, Atheneum decided to proceed with the publishing without Horgan’s authorization. On October 8, 1985, when the estate received a copy of the book’s final version from Macmillan, Horgan brought suit on behalf of the estate, seeking both preliminary and permanent injunction against the publication of the book.

On November 19, 1985, the court case Horagn v. MacMillan took place at 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 staged performance could not be recreated from them. [...]”

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 Horgan v. MacMillan took place 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. 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 [...] 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, [...] and could only be registered, pursuant to regulations issued under that law, as a species of “dramatic composition”. Dance was protectable only if it told a story, developed or characterized an emotion, or otherwise conveyed a dramatic concept or idea. [...] In a comprehensive report on revision of the copyright laws, the Copyright Office recommended to Congress in 1961 that the law be amended to insure protection for “abstract” as well as traditional dramatic ballet. [...] 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 [...]. [...] The Compendium of Copyright Office Practices, Compendium II (1984), which is issued by that office, defines choreographic works as follows: “Choreography is the composition and arrangement of dance movements and patterns, and is usually intended to be accompanied by music. Dance is static and kinetic successions of bodily movement in certain rhythmic and spatial relationships. Choreographic works need not tell a story in order to be protected by copyright. [...] Social dance steps and simple routines are not copyrightable. [...] Thus, for example, the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable. However, this is not a restriction against the incorporation of social dance steps and simple routines, as such, in an otherwise registrable choreographic work. Social dance steps, folk dance steps, and individual ballet steps alike may be utilized as the choreographer’s basic material in much the same way that words are the writer’s basic material.” [...]”

“[...] [Horgan] 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, [Horgan] 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. [...] In response, [MacMillan] 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. [...] According to [MacMillan], 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. [...]”

“[...] 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 [Horgan] that in resolving that issue the district court applied an incorrect test. [...] [T]he 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. [...]”

“[...] 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. [...] 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, e.g., at pp. 30, 38, 42, 66-67, 68, 69, 74, 75, 78, 80, and 81. 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. [...]”

“[...] Since the judge applied the wrong test in evaluating [Horgan]’s likelihood of success on the preliminary injunction, we believe that a remand is appropriate. [...] 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 [Horgan] 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. [...]”

The court held that the photographs were substantially similar to the ballet and remanded the case and suggested a full hearing. Following, Horgan and MacMillan reached a settlement out-of-court. MacMillan paid for the use of the choreography. As a result, further investigation was canceled.