Care to dance? Protecting dance with copyright

Choreography can be strenuous, gorgeous, uplifting and unique – but did you know it’s copyrightable too? That’s right; choreography and dance forms are actually eligible for copyright protection too, even though it might sound a bit tricky.

At the onset, it’s important to understand that the copyright in any work stays with the creator of the work so long as they have not assigned the rights to someone else, or created the work while in the employment of someone else. Meaning, if you belong to a dance company and you’ve choreographed a piece for one of their shows, it’s very likely that the dance company will own the rights to the choreography, unless you negotiated with them otherwise. (This post focuses on copyright issues and choreography – there will be material in the future that will talk about the legal issues that go into publicly performing a choreographic work).

Ok question – what makes a piece of choreography copyrightable?

In order to be eligible for copyright protection, a work of choreography has to satisfy the basic elements of copyrightable subject matter – meaning, the work of choreography has to be original and fixed in a tangible medium for some duration of time, so as to not be fleeting. You can look here to get a better idea about the elements of copyrightable works and how copyrights work. Being a copyright holder gives you certain rights over the work of choreography, which are exclusively yours unless you choose to assign or transfer them. This is important because the way you choose to exercise these rights (reproduction, communication, adaptation and translation) allows you to determine the ways in which your choreographic work can be presented. This also means that you can prevent someone from taking an unauthorized photograph or recording of your work (although this is subject to some conditions).

Sorry, did you say fixed? How do I fix choreography in a medium!?

Ah, now this is the tricky thing about copyright and choreography. A look at how different countries deal with offering legal protection to choreography tells us that the first pieces of copyrighted choreography were fixed in a medium, using a system of notation. Systems of dance notation like the Labanotation system were useful in that they could help create a manuscript of the dance or choreography – but they were tedious and expensive to make. Nowadays, it’s possible to use film or video recorders to record and fix choreography.

By Anonymous [Public domain], via Wikimedia Commons Dancers using the labanotation system
By Anonymous [Public domain], via Wikimedia Commons
Dancers using the labanotation system
What if I use photographs?

Using still photographs to fix a choreographic work isn’t a really good idea – atleast that’s what a Second Circuit Court in America said, way back in 1986. In the case of Horgan v. Macmillan. Inc [789 F.2d 157 (2d Cir.1986)], the Court held that still photographs did not provide enough material about the specific attitudes or instants of the choreography, and so could not effectively recreate a staged performance. The case was about this dispute that arose between the estate of super famous 20th century choreographer, George Balanchine and Macmillan Publishers who used pictures of the version of ‘The Nutcracker’ choreographed by Balanchine when he worked with the New York City Ballet Company, in a book about the story of the Nutcracker. Although the publishers took permission from the ballet company, they did not have the permission of the Balanchine Estate. Super annoyed, the Balanchine Estate brought an action against Macmillan for copyright infringement. (Now although the District Court held that there could be no infringement owing to the fact that the pictures did not recreate the ballet – thereby pretty much clarifying the fact that still pictures were a poor way to fix choreography; the case went on appeal and the Court of Appeals found in favour of the Balanchine Estate because it stated that the pictures were substantially similar to Balanchine’s choreography and that readers of Macmillan’s book would instantly connect the pictures to Balanchine’s choreography).

There has been some discussion since 1986 about how still photographs might actually be useful in recreating and explaining choreography, and thus may be used to fix a choreographic work. Having said that, it doesn’t seem too popular considering how easy it is to find video recording facilities.

So video recording or films are the best? Or not?

Fixing choreographic works using video or film might seem comprehensive to some, however there are a few choreographers and lawyers who disagree with video being a full-proof mode of fixation of dance or choreographic works. Some of the problems include determining whether copyright should extend to a) the performer’s unique interpretation or style when attempting to following the choreographer’s instructions and b) if it is assumed that the choreographer is responsible for the choreography and the performer’s interpretations of it, then is it appropriate to call the choreographer the sole copyright owner, or should the copyright over the work be held jointly by all the performers and the choreographer as joint authors?

Another interesting problem with using a film or video recording for copyrighting a work of choreography was brought up by the hugely influential dance critic for the New York Times, John Martin – he said that a film was merely a recording of the specific performance of the choreography, and could never really measure up to being a comprehensive description of the composition itself. In other words, a film or video recording is merely a recording of the interpretation of the composition, specific to the performance, and not the actual composition itself.

Although it is possible to submit a notation and video recording of the work of choreography, it’s also important to remember that there doesn’t seem to be any discussion on what happens in the event of a discrepancy between the notation-manuscript and the video recording.

Wait, but I looked at the Indian Copyright Act, and I did not find the word ‘choreography’ anywhere – what?

Indian copyright law does not explicitly mention choreography or dance forms as a category of copyrightable works. In 2009, the Supreme Court of India clarified in the case of Academy of General Education, Manipal v. B. Malini Mallya (AIR 2009 SC 1982) that a dance form would be protected as a dramatic work and not as a literary or artistic work under Indian Copyright law. The Court said that although dramatic works could also be considered a literary work, the fact that the law distinguishes between dramatic and literary works implies that works of performance like performance dance must necessarily be considered a dramatic work.

Earlier this year, Choreographer turned Director, Remo D’Souza decided to file for copyright registration for his choreography in the song “Bezubaan’ featured in the movie ABCD – Any Body Can Dance (which is directed by him incidentally). His move to copyright his choreography came at a time close to the beginning of awards season and might have also been a way for him to charge royalties from any performer choosing to recreate his dance moves.

Ok so what do I really need to know about copyrighting choreography?

Copyrighting choreography is a little tricky, but not impossible or unheard of. As a choreographer, you can choose to file for copyright registration if you want to be extra cautious about someone else ‘borrowing’ your composition – make sure, it’s the right category you are filing under though. From an economic perspective, copyrighting your choreography could also earn you some royalties. Although a copyright may vest naturally in your choreographic work, once it is created, it might be wiser to file for registration because of all the difficulties surrounding how to prove originality or show fixation of the work. Do remember that if you’re going to use a recording, make sure it’s yours – a broadcaster for instance, has rights over the recording they’ve made of your performance because by inviting them to record your performance, you’ve actually agreed to assign your performer’s rights to them (More about Performer’s Rights soon!)

Most of all, remember that if you work for a company and choreograph a piece in the capacity of being an employee, you will not be able to claim a right over the choreography, unless you’ve negotiated otherwise with your employers.

Copyrighting choreography is super interesting, but it looks like the law needs to evolve in order to really protect the special aspects of choreographic works. If you have any questions or queries regarding copyright and choreography, please do leave a comment or get in touch with me.

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