White Womanhood, Property Rights, and the Campaign for Choreographic Copyright: Loïe Fuller's Serpentine Dance

Photo 1. Loïe Fuller in a studio session promoting the Serpentine Dance in Uncle Celestin, February 1892.No photographic credit. Jerome Robbins Dance Division, New York Public Library for the Performing Arts, Astor, Lenox and Tilden Foundations.

In 1892 Loïe Fuller, often figured as one of the "mothers" of modern dance, brought an infringement suit in New York against a chorus girl named Minnie Renwood Bemis in an attempt to enjoin Bemis from performing a version of the Serpentine Dance, which Fuller claimed to have invented. ¹ The dance, distinctive for its use of yards of illuminated silk fabric, made the American-born Fuller famous in Europe and spawned a host of imitators on both sides of the Atlantic.

Intent on staking her proprietary claim on the dance, Fuller took the precaution of submitting a written description of it to the U. S. Copyright Office. Ultimately, however, the judge for the U.S. Circuit Court denied Fuller's request for an injunction on the grounds that the Serpentine Dance told no story and was therefore not eligible for copyright protection. Although Fuller clearly regarded her expressive output as intellectual property, dance at the time lacked legal recognition as a copyrightable category in its own right and merited protection only if it qualified as a "dramatic" or "dramatico-musical composition."

The precedent set by Fuller v. Bemis remained in place in the United States until the 1976 Federal Copyright Law explicitly extended protection to choreographic works. The case therefore figures prominently in historical accounts of the campaign for choreographic copyright in the United States. Typically, the court's finding that the Serpentine Dance, with its manipulations of fabric and light, was too abstract to count as dramatic is taken as evidence of Fuller's pioneering modernism. ² Conventional wisdom holds that it was not until "abstract" modern dance won wider legitimacy in the mid-twentieth century that Congress saw the need to add choreography as a classification of copyrightable work, relieving it from the "dramatic" requirement (Arcomano 1980).

Yet the case of Fuller v. Bemis is significant for reasons beyond its insistence that dance tell a story. As an early attempt by a white woman to use the legal system to secure ownership of a choreographic work, Fuller's infringement suit also has much to tell us about the relationship between race, gender, and property rights in American dance. Viewed from this perspective, the lawsuit offers a case study of a white, female, early modern dancer's endeavors to harness the racial privileges of whiteness and establish herself as a property-holding subject. Accordingly, this essay approaches the circulation of the Serpentine Dance and Fuller's lawsuit against Bemis as the story of a gendered struggle to attain proprietary rights in whiteness.

In invoking an affinity between whiteness and property, I draw on the work of scholars like Cheryl Harris, whose groundbreaking 1993 article "Whiteness as Property" asserts that historically, U.S. law has "accorded 'holders' of whiteness the same privileges and benefits accorded holders of other types of property," including the right of possession and disposition, the right of use and enjoyment, and the right to exclude others (1731). This conflation of race and property undergirded the conquest and seizure of Native American land and the institution of chattel slavery and, Harris maintains, has continued through to the present, albeit in subtler forms. More than a racial identity, Harris shows, whiteness has been legally constructed as a property interest. In a related vein, George Lipsitz's 1998 book The Possessive Investment in Whiteness argues that "whiteness is invested in, like property, but it is also a means of accumulating property and keeping it from others." Discriminatory home-lending practices, unequal educational opportunities, and intergenerational transfers of wealth, Lipsitz demonstrates, have all worked to sustain racial hierarchies and protect the "cash value" of whiteness (vii-viii).

Building on and extending these analyses, American studies scholar Eva Cherniavsky has recently proposed that one of the key protections afforded to whites—during...