Black folks love to create! From the latest fashions, hairstyles, music genres and certainly dance. Because I have become known for my expertise in all things Intellectual Property, I was tagged in a Fb live broadcast of a popular podcast called “Talking tea with Tika.” The podcast host had a guest DJ familiar with the Chicago Step scene, who was sharing his thoughts about the importance of protecting one’s creations. The DJ was hesitant to come on the show but felt that the step community needed be aware of what was happening. So lets talk about Step. Step is a urban dance craze mainly involved unique feet movements/”werk” and can vary state to state as folks add their own flare. The genre is so popular that there are competitions and classes teaching the dance all over the country and likely spreading internationally. The dance can be done alone but also involves a partner. The dance is generally set to popular music such as Rhythm and Blues hits such as “After the party.” I have done Step with friends and family for a long time. So long that I never even thought about where the dance actually started. Essence magazine had an article that traced step moves back to Africa and a dance called gumboot. There are so many similar dances out there such as the electric slide, wobble, or cupid shuffle all likely African dance moves influenced.
So lets talk Copyright- copyright is five exclusive rights (please see my other blog post on Trademark vs copyright for a break down of those five rights- https://ejleelawpractice.legal/2018/07/09/copyright-vs-trademark/ ) that apply to works that are original works of authorship, minimally creative and contain in an acceptable tangible medium. These creative works include film, television, music, art, photography, clothing and furniture- with separable art elements, choreography and some computer software programs.
The requirement of minimal creativity and in a tangible medium is what is often difficult to establish for choreography. There was a time when dance moves were tracked on paper in books and later film via video which helped with the tangible medium portion. Some recent dance moves have been ruled not minimally creative enough to meet Copyright standards. However, I would argue that the Chicago Step dance if contained in tangible medium such teaching people the dance does fall under Copyright or meets the minimally creative standard. Because its highly unlikely to tie Step to one origin, a video featuring the dance in creativity way would again meet Copyright standards and can be sold to consumers.
Chicago Step or Step competitions are popping up all over the world. Which takes me back to the podcast. The guest DJ stated that a newcomer/outsider to Chicago Step had claimed to have obtained an official trademark registration of “Chicago Step” and supposedly a Copyright though that was probably inaccurate.
The purpose of a trademark is to act as a source identifier for a a brand and assists consumers in distinguishing between different products and services. The strongest trademarks are those that are not at all descriptive of the product or service being offered. Two great examples are Apple for electronics including cell phones and laptops or Starbucks for coffee. Both companies are not at all descriptive of products but the marketing efforts of both companies are so good that automatically you knew exactly what each company is known for. In the case of Chicago Step- the product is Step, first red flag, secondly its geographically descriptive. So the likelihood of this name acting as a source identifier for one person or company fails.
As a trademark attorney I check USPTO records as part of my research and service to my clients that aim to have strong protectable brands that are creative for marketing but also uspto trademark standards. The more off the wall or quirky the name, the better. So after viewing the video, I got on my phone and went to the USPTO- United States Patent and Trademark Office to see what the official records showed. There were five records featuring the use of Chicago Step but none received an official registration number. One such registration, “Chicago Steppin” sought registration in the protection area of IC 41 for a TV show also called “Chicago Steppin.” The examining attorney determined :
Registration is refused because the applied-for mark merely describes a feature and characteristic of applicant’s services. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq.
A mark is merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of an applicant’s goods and/or services. TMEP §1209.01(b); see, e.g.,DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); In re Steelbuilding.com, 415 F.3d 1293, 1297, 75 USPQ2d 1420, 1421 (Fed. Cir. 2005) (citing Estate of P.D. Beckwith, Inc. v. Comm’r of Patents, 252 U.S. 538, 543 (1920)).
So with this information directly from the USPTO records, clearly the gentleman in question claiming that he has an official registration is FALSE.
So to recap the Copyright and trademark issues, merely descriptive trademarks will fail every time and descriptive terms of the service or product are free for use by anyone want to provide it. While choreography does fall under Copyright, said dance must be contained in tangible medium and minimally creative in how its put together.
IF you have questions regarding your choreography and proper branding name for it, schedule a consultation TODAY! https://calendly.com/ejleelaw/1hr