Guest Post by Shweta Dharap

Prior to the Federal Copyright Act of 1976, dance was given copyright protection only if its works were registered as dramatico-musical compositions. The question of if, how, and when should dance be protected under copyright law has been perplexing and rightly so, since an ephemeral art form like dance has to satisfy the criterion of ‘being fixed in a tangible medium of expression’. This fixation requirement has posed a lot of challenges specially before the advent of video technologies and the notational systems like Labanotation.

The Federal Copyright Act of 1976 provides copyright protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or a device.” Dance is a subject matter of copyright theoretically, as the Act defines “works of authorship” to include pantomimes and choreographic works. With the protection of copyright comes a bundle of economic rights granted to the copyright owner which are:

(1) the right to reproduce the copyrighted work,

(2) the right to prepare derivative works based upon the copyrighted work,

(3) the right to distribute copies of the copyrighted work to the public,

(4) the right to perform the copyrighted work publicly, and

(5) the right to display the copyrighted work publicly.

However, under the 1976 Act, a dance choreography should fulfill three requirements to gain copyright protection. 1) It must be a “choreographic work,” 2) It must be “original,” and 3) It must be “fixed in a tangible medium of expression,”

What is a Choreographic Work? What about social dance forms?

There is no clear definition of the term “choreographic works’ specified in the 1976 Act. The Copyright Office defines choreography as “the composition and arrangement of dance movements and patterns usually intended to be accompanied by music” or choreography which “represents a related series of dance movements and patterns organized into a coherent whole.”

Reports from the House and Senate indicate that choreographic works do not include “social dance steps and simple routines.” Just like words are a writer’s raw material, social dance and folk dance elements can form a base for dancemakers. Some unaddressed questions still persist. Are social dance forms totally excluded from getting a copyright? What is considered choreography if the legal definition includes abstract movement? Are storylines and music essential for a choreographic work to acquire copyright?

The Copyright Office has mentioned that a choreographed work often includes one or more of the following elements:

• Rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage;
• A series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole;
• A story, theme, or abstract composition conveyed through movement (Some case law points to the idea that a underlying notion of storyline might be needed for a choreographic work to achieve copyright protection, however there is no such requirement mentioned in the Copyright Act.);
• A presentation before an audience;
• A performance by skilled individuals; and
• Musical or textual accompaniment.

However, while these are common elements of a choreographic work, they aren’t standard. A choreographic work isn’t definitively defined by the presence or absence of these elements, according to the Copyright Office.

What are “original” works?

One can argue that a dance cannot be truly ‘original’ in the sense of being ‘novel’ or ‘unusual’. A choreographer can be inspired by multiple influences and training. “Original works” are those that have been developed by the choreographer according to their own judgement, skill, and labor. However, what exactly is the originality requirement for choreographic work has not yet been determined by courts and it remains to be seen.

Fixation

Before a choreographic work can acquire federal copyright protection, the work has to be “fixed” in a tangible mode of expression. The two most commonly used fixation medium are dance notation and video technology. However both these methods of fixation come with their own limitations. Formal dance notation, although thorough, is expensive and is not always useful in rehearsing or reconstructing a dance. While using video might be less expensive, this method can distort the choreographed work in trying to document a 3-dimensional piece of art in a 2-dimensional form. Federal courts have made it clear that despite the number of times a dance has been publicly performed, it can only be considered a copyrighted work under the 1976 Act when it is fixed in a tangible medium for the first time.

The 1986 case Horgan vs Macmillan posed a notable question of whether still photographs of New York City Ballet’s dance production of George Balanchine’s “The Nutcracker” was considered an infringement of the copyright of dance choreography as the photographs could either serve as the copies of the original dance or as derivative works. The district court stated that still photographs of a production do not constitute infringement as the staged performance cannot be recreated from still photos. The Second Circuit reversed this decision and stated that still photographs reveal a lot about a performance and remanded the case back to the district court saying that still photos constitute an infringement and the issues left for the district court to determine included the validity of Balanchine’s copyright, the amount of original Balanchine choreography in the New York City Ballet’s production of “The Nutcracker” and in the photographs, and the degree to which the choreography would be distinguishable in the photographs, by the embodied expression itself without the costumes and set design. Before the case was remanded back to the district court, the parties did an out-of-court settlement. This case shows that there should be an expert involved who can interpret the legal language but who also understands the nuances of the dance form. Judicial review of the Act is often insufficient and inaccurate without a deep knowledge of dance.

Infringement and Transfer of Rights

In Fourth Estate Public Benefit Corp. v. Wall-Street.com, the Supreme Court ruled that copyright claimants can sue someone for infringement only after they have received a copyright registration from the US Copyright Office. A choreographer of an unregistered work can only file for injunction — to stop the infringing party from performing the work. Registration of a copyright with the US Copyright Office is important as Title 17 bars the creator of unregistered work from receiving statutory damages and attorney’s fees, which is a set and easily determined amount. Conversely, the benefit of having a registered copyright is the ability to be awarded a calculable statutory amount.

To exploit the copyrighted work commercially, artists can use transfer of rights as a way to get the work out in public. The ways in which one can transfer their copyright rights to another person or entity are as follows:

• Assignment/ license- Assignment means a complete transfer of ownership of the copyright to another person or entity while a license means grant of some of the rights conferred by a copyright.
• Mortgage/Security
• Transfer of copyright upon death- If the owner of a copyright has a valid will after death, then the stated beneficiary will be the new owner of the copyright. In the absence of a will, the copyright ownership is transferred according to the rules of intestate succession.
• Involuntary transfer- A court can order transfer of ownership in certain cases like bankruptcy, divorce, etc.

Who owns the copyright?

The answer to the question of who owns copyright in a certain work is sometimes tricky to decipher. The creator of a work is the rightful copyright owner is the general rule. However, depending on the conditions in which the creator was creating the work, the copyright ownership can change. Let’s consider a few such scenarios:

• Employer owned work- Usually under employment contracts, if a choreographer/ artist is an employee of a certain company then the work created by them is owned by the company. Since, the work is created in the course of the employment of the choreographer, the copyright is owned by the entity/company who has hired the choreographer unless a different contract has been agreed upon by the parties prior to employment.
• Works made for hire- In cases where the choreographer is a freelance artist or an independent contractor, then the work they create will not necessarily be their own property. Where the artist is again commissioned or hired by an entity/ person to create work that entity/ person will have the copyright ownership unless a different contract has been agreed to by both the parties before the engagement.
• Joint ownership in works- Its not uncommon for two or more artists to come together and collaborate to create a work to which they have contributed towards without clear separate distinct parts, rather the contributions are interdependent. In such cases, all the creators will be considered as joint copyright owners of the work by the US Copyright Office. Each owner will have a right to exploit and enforce the copyright independent of the other, provided that the other creators get an equal share of the transaction. Of course, the rules of joint ownership can change only if the collaborators have an agreement stipulating the rules of ownership and agreed to by all the parties.

Music Clearance Rights in Dance

Music clearance rights is a matter of great relevance with the use of social media and other online platforms showcasing dance during the pandemic, often using popular music. It is imperative dance creators are careful to use copyright free music or either gain permission of the music copyright owners to be used in their work. The two main Performing Rights Organizations, ASCAP and BMI, have the catalogue of the popular copyrighted songs. These music licensing organizations are vigilant on the use of copyrighted music by monitoring the public performances and broadcast of their music. It’s important to take music licenses from the appropriate owner of the music to be used in a dance choreography. Independent songwriters have to be contacted directly in order to get clearance to use their work in choreographic work.

Resources for Music Rights Clearance for Fee

• Copyright Clearance Center: http://www.copyright.com/
• BZ Rights and Permissions Inc.: http://www.bzrights.com/
• EMG Music Rights Clearance: http://www.clearance.com/

Sources

1. The Pas De Deux Between Dance and Law: Tossing Copyright Law into the Wings and Bringing Dance Custom Centerstage
2. Copyright for Choreography: When is Copying a Dance a Copyright Violation?
3. Music Grand Rights Clearance Request Template
4. Copyright Basics for Dance Works
5. Dance and Copyright: Legal “Steps” for Performers
6. Copyright and Dance
7. Dance and Copyright, Part 2

Photo credit: David Gavi for Unsplash