Irving David – Raising awareness of the legal rights of choreographers

Making the right moves

December 2012

I recently attended a ballet masterclass presented by a leading UK ballet company. It featured the work in progress of an up-and-coming choreographer who had been commissioned to create a new work for a forthcoming triple bill.

Over coffee afterwards, I chatted to the choreographer and was rather surprised at her basic lack of understanding of the various different copyrights that exist in or are incorporated into choreography.

I explained to her that anyone who creates something original – whether it be a painting, a literary work, a piece of music or a choreographic work – will naturally expect to be identified as the author of the work and to be compensated for his or her creativity.

‘Choreography’ can be defined as ‘the composition and arrangement of dance movements intended to be accompanied by music’ and that dance and mime are protected as ‘dramatic works’ – those that have movement, a storyline or action. The dancemaker had not considered her choreographic creations as ‘dramatic works’ before then.

The UK Copyright Act 1988 gives the owner of the copyright in a dramatic work certain rights in relation to it – including the right to make copies of the work and to broadcast and adapt it. If the copyright owner does not wish to directly exercise one or more of these rights he or she may permit others to do so in return for either a royalty or a one-off (‘buy-out’) payment.

Who is the author of a choreographic work and, therefore, the first owner of the copyright is not always straightforward. If one person alone creates a work then he or she is clearly the sole author. But where people collaborate they may be co-authors. So choreographers who work with dancers to develop a dance routine or ballet should come to a clear understanding in advance as to who owns the copyright.

Another choreographer, a former principal dancer and now the artistic director of a prominent Eastern European ballet company, recently contacted me for advice as to how best to copyright an idea he had for a new ballet.

I had to explain to him that there is no such thing as ‘copyright in an idea’ so that if, for example, a number of photographers each take a similar photograph or if different individuals independently produce recordings which are similar then a separate copyright will subsist in each of those photographs or recordings.  They have not ‘copied’ each other. This principle is also important in dance: anyone seeking copyright law protection will have to show that the choreography is more than just an ‘idea’.

For a choreographic work to be entitled to copyright protection it needs to be ‘fixed’ or recorded in some permanent form. It will not be protected if it is merely publicly performed. To ‘fix’ a set of lyrics or a piece of music is relatively straightforward – they can be written down or recorded and, thereby fixed.

Historically, the difficulty in fixing dance in a permanent form has led to choreography being marginalised in copyright law. The lack until recently of an accessible and reliable system of dance notation has made it difficult for some choreographers to protect their copyrights.

Fortunately, the law now permits dance to be recorded in ‘writing or otherwise’. Video cameras have made it a lot easier for choreographers to fix their works and other methods of fixation now include notation, pictorial or narrative description, film or videotape and even computer animation. These can all be used by a choreographer to protect or enforce his or her copyright.

Provided that choreography is original, is capable of physical performance, and can be fixed, it will be protected as a dramatic work from the date of fixation until seventy years after the death of the choreographer – or if there are co-authors then until seventy years after the death of the last survivor.

It is rather surprising that ballet schools, whilst focussing on the actual techniques of dancing and choreography, do not emphasise in their curriculum the importance of copyright, emphasising the various parties who will have a copyright interest in a particular work and the pitfalls that await the unwary who inadvertently infringe the rights of others.

For example, in the case of a stage musical, the choreography will usually only be one of many copyrights involved – there will be musical copyrights; a dramatic copyright in any ‘book’ or script; and artistic copyrights in the sets and costumes.

There will also be a separate copyright in any film, audio-visual recording or broadcast made of a dance or ballet so permission will be needed from all the copyright owners, including the owner of the choreography, before the film or recording can be exploited.

In conversation recently with the principal of a leading UK ballet school I expressed my concern that academies such as hers, whilst focussing on the actual techniques of dance and choreography, do not sufficiently emphasise in their curriculum the importance of copyright,thereby increasing awareness of the various parties that might have a copyright interest in a particular work — not to mention the pitfalls that await the unwary who inadvertently infringe the rights of others.

She did accept that the schools have some way to go but pointed out that they do now offer courses to their senior students such as the BTEC National Awards in Performing Arts including Arts Management. In my view, this is clearly a step in the right direction.

 

Read the full article on page 15 in International Arts Manager here.