How The Nutcracker Came Alive: Choreography, Copyright and a Christmas Classic
With the holiday season approaching, Disney is set to release The Nutcracker and the Four Realms, a live-action fantasy film based on the Christmas classic.1 Producer Mark Gordon has specified that while he and Disney aim to bring “the experience of the ballet to a wider audience”2, the upcoming work is not a dance movie.3 The film, rather, “honor[s] the ballet”4 while trying to enhance The Nutcracker’s story, characters, and “visual splendor.”5 Even as Disney breathes new life into Clara’s journey through the Land of Sweets, this onscreen adventure will not be the first time The Nutcracker gets reinvented.
The Nutcracker and the Mouse King was published in 1816 by Prussian gothic-horror writer E.T.A. Hoffman.6 Originally written for adults, the tale was modified into a child-friendly version in 1844 by French novelist Alexandre Dumas.7 It was Dumas’ version of The Nutcracker that was adapted into a two-act ballet choreographed by Marius Petipa, chief ballet master of the Russian Imperial Ballet, and his assistant, Lev Ivanov.8 Petipa commissioned Pyotr Tchaikovsky to compose the music, and the production premiered at the Marinsky Theatre in St. Petersburg on December 17th, 1892.9 Tchaikovsky’s Nutcracker score, currently in the public domain, remains one of the most recognizable classics even among listeners outside of the ballet world.
As a ballet production, The Nutcracker reached new heights under the direction of George Balanchine.10 The Russian native founded The New York City Ballet in 1948.11 Six years later, Balanchine choreographed his first full-length work for the Company: his own version of The Nutcracker set to Tchaikovsky’s score.12 This is the version that has launched the hundreds of Nutcracker ballet productions that now dominate the holiday season.13
At the time of Balanchine’s first full-length production, choreography was not a classification under U.S. copyright law and could only be registered as a form of “dramatic composition” pursuant to regulations issued under the 1901 Copyright Act.14 It was not until 1978, when the newly revised Copyright Act of 1976 went into effect, that choreography was expressly included as a protectable form of expression.15
To warrant protection under the new law, a choreographic work must be both original and “fixed in any tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated…”16 The originality requirement dictates that the work be “independently created by the author” and exhibit a “minimal degree of creativity.”17 Balanchine’s Nutcracker choreography was based, to some degree, on Ivanov’s earlier work, which—because it is in the public domain—can be freely used without obtaining rights.18 However, the originality requirement does not prevent a choreographer from gaining copyright protection for his contributions to the preexisting work.19 In 1981, Balanchine registered his claim with the U.S. Copyright Office to copyright his contributions to Ivanov’s choreography.20 To satisfy the “fixed” requirement, Balanchine deposited a videotape of New York City Ballet’s Nutcracker dress rehearsal.21
New York City Ballet’s production of George Balanchine’s The Nutcracker® has become a tradition among New Yorkers.22 The Company estimates that it presents forty seven performances of the now trademarked production each year.23 During his lifetime, Balanchine was paid royalties every time The New York City Ballet performed The Nutcracker or any other Balanchine ballet.24 He would receive additional royalties by licensing his ballets to other ballet companies, as well as for any media reproductions of his ballets.25 After Balanchine’s death in 1983, The George Balanchine Trust was established to preserve and protect Balanchine’s creative works.26 The Trust is currently responsible for licensing Balanchine’s ballets and protecting his copyrights, including all media and live performance rights worldwide.27
The evolution of The Nutcracker illustrates both the progress of copyright law and the interplay between publishing, performance, and film. The Nutcracker and the Four Realms hits theaters on November 2nd, and The New York City Ballet will perform George Balanchine’s The Nutcracker® at the David Koch Theater in Lincoln Center from November 23rd to December 30th. These two productions set in different mediums speak to the relevance of this timeless classic.
Maureen Lee Lenker, Get a behind-the-scenes look at Disney’s Nutcracker and the Four Realms, Entertainment Weekly (Aug. 17, 2018), https://ew.com/movies/2018/08/17/nutcracker-and-the-four-realms-behind-the-scenes-images/. [https://perma.cc/4VXX-ZDVV]↩
Newsdesk, The Nutcracker and the Four Realms isn’t a ‘dance movie’, Film-News.Co.Uk (Oct. 24, 2018), http://www.film-news.co.uk/news/UK/58915/The-Nutcracker-and-the-Four-Realms-isn-t-a-dance-movie. [https://perma.cc/26A6-BY3Y]↩
I.M., How “The Nutcracker” danced all over the world, The Economist (Dec. 21, 2017), https://www.economist.com/prospero/2017/12/21/how-the-nutcracker-danced-all-over-the-world. [https://perma.cc/8V65-A6A4]↩
New York City Ballet, https://www.nycballet.com/Season-Tickets/Nutcracker-Additional/History.aspx. (last visited Oct. 25, 2018). [https://perma.cc/8NQL-JGZ8]↩
New York City Ballet, https://www.nycballet.com/Season-Tickets/Nutcracker-Additional/Fun-Facts.aspx. (last visited Oct. 25, 2018). [https://perma.cc/RU73-YCNX]↩
I.M., supra note 6.↩
New York City Ballet, supra note 8.↩
New York City Ballet, https://www.nycballet.com/Explore/Our-History/George-Balanchine.aspx. (last visited Oct. 25, 2018). [https://perma.cc/TMT4-ZN74]↩
Laura Jacobs, Balanchine’s Christmas Miracle, Vanity Fair (Dec. 9, 2014), https://www.vanityfair.com/culture/2015/01/the-nutcracker-george-balanchine. [https://perma.cc/2263-GEDQ]↩
Horgan v. Macmillan, Inc., 789 F.2d 157, 160 (2d Cir. 1986).↩
Joi Michelle Lakes, A Pas De Deux for Choreography and Copyright, 80 N.Y.U. L. Rev. 1829, 1844 (2005).↩
Horgan, 789 F.2d at 158↩
Michael Cooper, New York Will Lose Ballet Theater’s ‘Nutcracker’, N.Y. Times (Mar. 16, 2014), https://www.nytimes.com/2014/03/17/arts/dance/new-york-will-lose-ballet-theaters-nutcracker.html. [https://perma.cc/H3AX-DXD2]↩
New York City Ballet, supra note 8.↩
Horgan, 789 F.2d at 158↩