## Facts

- George Balanchine choreographed a distinctive version of *The Nutcracker* for the New York City Ballet, first staged in 1954 and performed annually.
- Macmillan planned to publish *The Nutcracker: A Story & a Ballet*, presenting the New York City Ballet’s production through text and numerous still photographs taken during performances and rehearsals.
- Barbara Horgan, as executrix of Balanchine’s estate and copyright holder, alleged the book’s photographs infringed the copyrighted choreography.
- Defendants argued still photographs could not capture choreography in a way that constitutes actionable copying under copyright law.

## Issues

1. Can a series of still photographs of a ballet performance infringe the copyright in the underlying choreography?
2. Did the district court apply the correct infringement standard when denying a preliminary injunction?
3. How should the preliminary-injunction request be reconsidered in light of the proper infringement analysis, including equitable defenses such as delay?

## Decision

- The Second Circuit vacated the order denying a preliminary injunction and remanded.
- The court held the district court used an incorrect legal standard by treating infringement as requiring that the choreography be reproducible from the photographs.
- The court directed the district court to apply a substantial-similarity analysis, comparing protectable choreographic expression to what the photographs depict.
- The court did not decide infringement on the merits; it required reconsideration under the correct test and suggested consolidating any further preliminary-injunction proceeding with the trial on permanent injunctive relief.

## Legal Principles

- Choreography is copyrightable subject matter, and its protectable expression may include poses, attitudes, groupings, and arrangements, not merely a “flow of steps.”
- Infringement does not require that the allegedly infringing work permit reconstruction of the entire copyrighted work; the central question is substantial similarity of protectable expression as perceived by an ordinary observer.
- Still images can embody protectable elements of choreographic expression and therefore can, in principle, infringe choreography.
- In copyright cases, preliminary injunctive relief turns on the standard injunction requirements (including likelihood of success or serious questions plus hardship balance, and irreparable harm); an erroneous merits standard requires reconsideration of the injunction ruling.

## Conclusion

The Second Circuit required the district court to reassess whether photographs in a book substantially resembled protectable elements of Balanchine’s choreography, rejecting any rule that infringement depends on the ability to reconstruct the full dance from still images, and it vacated and remanded the denial of preliminary injunctive relief for application of the correct standard.


Horgan v. Macmillan, Inc., 789 F.2d 157 (2d Cir. 1986)