Dance and Intellectual Property Rights

Five Parts:

1. Dance and Western Culture

Dance has had a rough history in the West. In part this is because of the anti-body/ pro-verbal-cerebral bias of Western Religion (And God said, "Let the be light...", In the beginning was the Word, Recitation).) and also because of Western Platonism and Neo-Platonism, there was the identification of the spirituality, intellect beauty and moral goodness with immateriality and the body is at best a vessel ultimately to be discarded or at worse, the source of all pollution, sickness, error and sin. Imperial Roman excesses didn't help either. So according to this tradition, in dance there's simply not much good or Godly; there is certainly nothing intellectual.

2. Dance and Conditions of Sameness/ Identity Criteria

What does it mean to say that two dance-events are instances of the same "work of dance?" Various dance-event tokens can be/ are labeled instances of the same type "work of dance." What does one assert when one claims this? What conditions must be satisfied?

The actual practice for ascribing sameness is a confusing affair. On the one hand, any adequate criterion for “Swan Lake,” for instance, would have to be loose enough to allow for differences in sets, costumes, storyline, choreography, body types, dancing skills, budgets, contexts of presentation, artistic interpretations and even music that exist among the vast array of historical examples of "Swan Lake." That is, the articulation of the identity criterion which people implicitly use must be loose enough to account for the various dissimilar events that critics (and others) have long held to be legitimate instances of a single work (other examples being perhaps "Coppelia," "Giselle," "The Nutcracker," etc.).

On the other hand, an adequate criterion would also be strict enough to account for the attention to detail the dance community pays to reproductions of other famous historical works (i.e. works of choreographers such as Duncan, Limon, Graham, Tutor, et al.) The puzzle seems to be that some of the time the criterion is very lax; other times it seems very tight. It may also be added that a good criterion would relate the dance-event in question to an historical predecessor yet be sufficiently pliant as to allow for furthering the aims of that historical work (continue its history, perhaps adding artistic merit).

It has been my experience that the creation of a dance (both in choreography and in performance) is a much looser affair then one might think. Occasionally one has flashes of inspiration when an entire movement phrase is envisioned (or remembered for that matter), but more often it is the case that the making of a dance is a piece-meal thing that lurches unevenly forward, taking its impetus from what is going on at the moment. In choreography sometimes the only overriding concern is "How do I get her down-stage-left in 24 counts?" At times, the choreographer might know that this particular dancer turns well, but her body-type is ill suited for impressive extensions. In such a case s/he might showcase the dancer's strengths and hide weaknesses. Since these decisions about the structure of the dance are contingent upon accidental features, they are readily changed given a different set of circumstances. In performance, should the audience respond a certain way, the dancer might augment or enhance a particular step. If a stage is fast or the performance area small, the dancer might change the choreography in order to give a better overall performance in this particular situation. This sort of thing goes on all the time in dance, yet choreographers, dancers, dance spectators, critics, etc., all make their way through this ephemeral world naming and identifying, usually with relative ease.

The point of these remarks is this. Dancers and choreographers, at least the ones with whom I have spoken, do not adhere to very strict identity criteria when recreating what they take to be same DAPA-events, at least, not all the time. Furthermore, the dance world does not seem to require very strict criteria. It has long been recognized that dance is one of the most transient of art forms. For the greater part of the history of dance, reviving a ballet meant simply finding someone who was in the original production and having him stage as much of the ballet as he could remember. After that, if there were blank spots, the choreographer would just have to fill them in as best she could. Works of dance lived only as long as dancers could remember them and were only as detailed as dancers could remember them.

This pliancy has been inherited by the dance community of today. Even with more sophisticated means of detailing dance performances we find that choreographers make only limited use of them. Choreographers almost universally criticize Laban and other notation systems as cumbersome and incapable of capturing the dance-type. Video and film, though more extensively used, suffer because they captures too much, specifics that are irrelevant or mistakes that need to be corrected, not repeated. But perhaps more to the point, the choreographers and persons who stage the dances have no problem with altering the specifics even when they are clearly documented by notation or film. If they think they can create a better production of some historical work they will. And yet, all the time they maintain that theirs is but another in a series of tokens of a type.

Given the above, I think it unfruitful to search for strict prescriptions to determine what counts as two instances of the same 'work of dance' when one is talking about historical works of dance. There is, as a matter of fact, much leeway in the ascription of type identity to a wide variety of tokens. When the very people responsible for creating and recreating the tokens adhere to no such strict rules (at least not all the time), it should not surprise us that such prescription cannot be found.

Nevertheless , if dance was to be taken seriously (as seriously as one can take a light art form) there has to be some pubic object which endures. But there is no fixed object that is dance. It's more of a process or event. The only way works of dance-art could possibly attain any "enduring" significance would be to suggest, like works of music, works of dance had multiple genuine instances (i.e. were allographic) and while the instances are ephemeral, the work is timeless and eternal (at least potentially). But that sort of thinking is really a Platonist bias looking for a Platonist apology. Accordingly, it is very natural for Western dancers, choreographers and critics to identify the "work of dance" with the "repeatable essence" we might call the "Form" of the dance. And they quibble only over the nature of this form and/or how exacting the standards for authentic work production.

This “Form” becomes the object of aesthetic and artistic evaluation and, I suppose, the property to be safeguarded. But were we to conceive of the work as the singular experience of an evening- like a great rock performance- then the question of "stealing" it cannot arise since each performance is unique and "authentic." Further, were we to trade the sterile static form for something more organic which holds place, space and context as relevant, again, the question of what the author has rights to/over is significantly changed. Think of it this way: rather than steal your novel, instead I tell a story you told yesterday. Maybe I use some of the same words, maybe even a lot of the same words, but it's my story-telling, not yours. And good (or bad for that matter) storytelling is much more about performance and delivery and the atmosphere and "the moment" than it is about the set of words and their ordering (formal elements and their formal arrangement).

The point I want to make is, equating the “work of dance” with the choreography begs several questions, but we tend not to notice since we begin by assuming “works of dance” are allographic. But we think they’re allographic because we equate them to the choreography- a repeatable essence. This may merely be residual Platonism both his theory of forms and denigration of the importance of the spatial/corporeal. The non-Western dance traditions often stress the importance of place and context for authentic (no sacrifice is valid outside of the Temple sort of thing) production. Hula had to per performed only by the initiated in the sacred place for instance. But with the destruction of the Temple and the under the influence of Neo-Platonism later Judaism, Christianity, etc. de-emphasize the importance of space (e.g. Where to or three of you are gathered in my name I am in your midst.) and the body. For dance this has the effect of stressing the (repeatable -essential) form and the accidental place, space and bodies are inconsequential. But all that may be an unjustified cultural bias.

I argue below that for two events to both be instances of a particular work of dance, they must adhere to certain reproduction rules that are implicit in the use of the name of the work of dance by the specified language community.

2. Dance and Copyright

Choreography has been copyrightable since 1947

Abstract choreography, or that which does not tell a story, did not gain protection until 1976.

Many problems remain to be worked out.

Roland Barthes Image-Music-Text

Two ways of viewing a piece of writing:

a. a work

b. a text

Mild applies his definitions to the art of choreography and considers the traditional practices of the dance community versus the structure of copyright law.

Choreography is inspired by preexisting movement styles

She relates "Steps" to "words"

Cites Horgan v. MacMillan as contrary to practice

The author is seen as the "father" of the written work

The choreographer is seen as the "father" of the dance (work).

This places the choreographer as owner of the dance with dancers as the “work for hire” artisans.

The case of The Martha Graham School and Dance Foundation v. Martha Graham Center of Contemporary Dance highlights the significance of this discrepancy.

The two court cases are the only cases involving choreographic copyright since 1976.

Most choreographers do not register their works for choreographic copyright

· they do not have the time or resources

· instead rely on contracts and the traditional protections of the dance community

· These were developed before digital recording and worldwide access to works of dance

Introduction

Article I of the United States Constitution:

"Copyright law was created to encourage the “progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (qtd. in Lakes 1836).

A work is copyrighted at the moment of creation, but it must be registered with the copyright office to receive protection in a court of law.

Choreographic works are underrepresented.

Choreography has only been copyrightable since 1947

Abstract choreography 1976.

Brief History of Choreographic Copyright

History drawn from Kathleen Abitabile and Jeanette Picerno’s “Dance and the Choreographer’s Dilemma: a Legal and Cultural Perspective on Copyright Protection for Choreographic Works”

· Before 1947 choreography was not covered by copyright law because it was not considered a “useful” art form.

· Congress defined “useful” as “morally proper”.

· Whereas motion pictures and books were considered “useful” because they “told stories and taught lessons”, dance was considered immoral.

Examples of early cases in which choreographers were denied copyright protection because of immoral content.

Martinelli v. Maguire (1867)

The complainants attempted to prevent the defendants from staging an adaptation of “The Black Crook”.

The court described the dance as “an exhibition of women in novel dress or no dress, and in attractive attitudes or action” and considered it to be in opposition to the morals.

Fuller v. Bemis (1892)

Fuller sued for infringement of her choreography for Serpentine Dance

Could have cited the moral clause and the Matinelli case, but did not.

Court insisted that a dramatic work must have a story or plot to be eligible for protection.

Offered no authority for this decision

Barnes v. Miner (1903)

Ineligible for copyright protection due to improper content

First choreographic work to gain protection was Hanya Holm’s “Kiss Me Kate” in 1952.

George Balanchine’s “Symphony in C” was rejected in 1953 because it didn’t tell a story; He succeeded in copyrighting a motion picture version of “Symphony C”.

Finally, in 1976 the Copyright Act extended protection to abstract choreography.

To be eligible for registration, a work must be considered:

· a choreographic work

· original

· “fixed in some tangible medium of expression”.

The Copyright Act fails to explicitly define "choreography"

Copyright Office established the official definition as:

“the composition and arrangement of dance movements and patterns usually intended to be accompanied by music… To be protected by copyright…choreography need not tell a story or be presented before an audience…a related series of dance movements and patterns organized into a coherent whole”

Only two cases involving choreographic copyright have been tried in court since the 1976 Copyright Act.

Horgan v. MacMillan:

MacMillan was accused of copyright infringement for using pictures of Balanchine’s “Nutcracker” without permission from the Balanchine estate.

Martha Graham School and Dance Foundation v. Martha Graham Center of Contemporary Dance

The non-profit institutions she established fought with her legatee Ronald Protas over the rights to her choreographic works after her death.

3. Dance as Intertextural

Roland Barthes Image – Music – Text

Two approaches to authorship.

1. A work:

The work is “caught up in a process of filiation” in which “the author is reputed the father and owner of his work”.

2. A text.

The text is “intertextual”, stemming from a variety of “sources” and “influences” that are “anonymous, untraceable, and yet already read”

Mild extended the notion of a text to the process of dance making.

In some cases the dance is passed down from one generation to the next through imitation of movement. This inevitably required the intentional and unintentional assimilating of the movement ideas of the teachers.

Ellen Bromberg, a professor in the University of Utah Modern Dance Department, explained, “You can see elements of each of the faculty members’ movement stamps in the student choreographed pieces. Are (the students) going to be sued? No. This is the way we pass on knowledge”.

Indeed: United States Code Title 17 Section 102, “copyright protection for an original work of authorship” does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery”

Thus, a choreographer could create a piece in the Bob Fosse style without violating copyright law.

But what constitutes “substantial similarity?”

Who is to make these judgments in the first place?

Do such judgments require expertise to analyze dance productions.

Van Camp references precedents set by the Horgan v. MacMillan

The court emphasized that substantial similarity is not necessarily determined by the amount of infringing material. (still photography)

“a single moment in a dance sequence” could “convey to the viewer's imagination the moments before and after the split second recorded.”

Van Camp points out,

“if a photograph could be infringing, so, we might speculate, might a still pose in a live performance, although the court does not expressly make that observation”.

But this seemingly contradicts the copyright law it states that “isolated steps from an established movement vocabulary” are not eligible for copyright protection.

Van Camp notes that granting a choreographer copyright for a particular step can be equated to granting an author copyright for a word .

But in the words of George Balanchine

“There are no new steps, only new combinations.”

Krystina Lopez de Quintana observes that

“allowing protection for mere moments in an overall work leaves many new choreographers open to lawsuits. The test may be so strict that future choreographers may be creatively stifled for fear of infringing on an unknown choreographer’s work.”

Joi Lakes asserts that the Second District failed to recognize the importance of “flow” or movement in defining choreography.

In 1984 the copyright office released Compendium II of Copyright Office Practices that defines choreography as

“the composition and arrangement of dance movements and patterns … Dance is static and kinetic successions of bodily movement in certain rhythmic and spatial relations”. (my emphasis)

It goes on to state that elements such as

“the basic waltz step, the hustle step, and the second position of classical ballet” are not eligible for copyright, but they can be included in copyrighted works. Whereas these basic elements should remain in the public domain, creative combinations of the “building blocks” of dance are eligible for proprietary rights.

Lakes notes an inconsistency in the definitions offered by Compendium II. It states that, “choreography must be more than mere exercises such as ‘jumping jacks’ or walking steps” (qtd. in Lakes 1845). It seems that the copyright office intended to narrow the definition of dance to exclude sports routines from protection under the category of choreography.

However, they fail to explain that dances can be formed by combinations of sports-like or pedestrian movements (Lakes 1845). This narrow definition excludes dance pieces like Paul Taylor’s Esplanade from protection. Esplanade is composed entirely of walking, running, skipping, leaping, hopping and falling. A review in The Village Voice suggested that the “vocabulary hymns everyday locomotion, but the choreography's superbly imaginative directional changes and spatial patterns, as well as its sophisticated rhythmic interplay with selections from two Bach violin concertos, give pedestrian an air of exaltation” (Jowitt). Taylor’s originality was in his creative combination and arrangement of these everyday movements.

Lakes maintains that Congress should clearly define choreography so that the courts will have a better understanding of what is to be protected. She suggests that “choreographic work” be defined as “a choreographer’s expression represented by the planned flow of one or more dancer’s movement in time through body positions and spatial arrangements. Choreographic works are not individual positions or movements, nor basic combinations, but may be composed of the combination of them.” She admits that even this definition excludes such works as Paul Taylor’s Duet from protection. In this work two men sit onstage for the duration of the piece (Lakes 1858). As dance evolves and artists continue to push the boundaries of the art form, the definition will have to evolve to afford choreographers the best protection.

4. Choreographer as Father: The Work for Hire Doctrine

When the dancers themselves have contributed to the choreography, as is often the case in contemporary dance, should the choreographer is considered the sole owner?

Bromberg suggests that

“when a dancer agrees to work with a choreographer, the dance is implicitly understood as the property of the choreographer.”

The work for hire doctrine in the Performing Arts copyright registration form

a “work made for hire” is defined

1. “a work prepared by an employee within the scope of his or her employment”

2. “a work specially ordered or commissioned for use as a collective work, as a part of a motion picture (etc.).”

The form states that if the work fits either of these criteria, “the employer or other person for whom the work was prepared is considered the author.”.

This was a critical issue in Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc.

Sharon Connelly

“Authorship, Ownership, and Control: Balancing the Economic and Artistic Issues Raised by the Martha Graham Copyright Case”.

· involved sixty-five years worth of choreographic works

· (some governed by the Copyright Act of 1909)

· (others by the 1976 Act)

Under the 1909 Act: “instance and expense”

If “the employer both induced the creation of the work and had the right to direct and supervise how the work was executed”, then it is considered a work for hire.

But Graham utilized the Center’s facilities and dancers employed by the Center. Although the Center did not in fact intervene in Graham’s artistic direction (instance) the District Court determined that it had the authority to do so, and thus, the “instance” test was also fulfilled.

Also, all but ten works (created between 1956 and 1965 and excluded on appeal) were created when Graham’s contract did included choreographic duties.

All fifteen of Graham’s works created between 1978 and 1991, were judged as works for hire under the 1976 Act which defines a work for hire as one which is “prepared by an employee within the scope of his or her employment” but does not fully define “employee” or “scope of employment”.

The Second Circuit in the case of Aymes v. Bonelli cited five factors that determine if an individual is an employee:

(1) requisite skill

(2) the right of the hiring party to control the manner and means of production,

(3) whether the hired party may be assigned additional projects

(4) tax treatment of the hired party

(5) provision of employee benefits.

Connelly suggests that choreographers should retain "moral rights" to their work.

1. “rights of paternity” “attribution”

2. " rights of integrity" e.g. choreographer’s right to object to distortion, etc.

.

Economic rights secured by copyright may also be asserted in the negative, thus guaranteeing that an author has the right to not reproduce a work

Dance/NYC contract templates explicitly relinquishes all right to the choreography to the choreographer.

Mild also points out that choreographer working for non-profit organizations cannot attempt to profit from this works, even when copyrights have been relinquished without raising serious tax issues.

But why should choreographers be treated differently than other inventors, entrepreneurs, and businesspeople who are capable of making a profit? However, because artists rely on the generosity of kind patrons, and thus, are stuck in the system of non-profit organizations.

Nevertheless, artists and non-profit foundations live in a symbiotic relationship:

In a letter that to her mother, Graham wrote:

“The Foundation has made a legal arrangement with me by means of which they 'buy' the school and my name…There is not much more money available but there is much less worry and fear because it is well taken care of and the future is better arranged for than ever before.”

Ironically, it was Protas who filed a writ of certiorari in the Supreme Court questioning “whether the work-for-hire doctrine can divest an artist from the ownership of her body of work in situations where that artist has established a not-for-profit entity to facilitate the creation and presentation of those same works.”

Jose Limon, George Balanachine, Alvin Ailey, and Jerome Robbins’ beneficiaries each sold the licenses to their works to the companies for which the works were created, but since the parties involved did not seek a legal determination of copyright ownership the legal standard was not called into question until the Graham case.

An Era of Fear and Disloyalty

Bené Arnold

Willam Christensen "…came up when people gave their word and their trust (to fulfill the choreographer’s intent). I was his ballet mistress (at Ballet West). I restaged a lot of his works. I told him I would honor his ballets. I continue to honor that trust.”

(One is reminded of Annette Bear here)

Interestingly, occasionally, Arnold modifies the choreography in consideration of a dancer’s strengths or weaknesses, but she always consults with Christensen’s wife Florence in these instances.

If the ballets are not fixed in a tangible medium, then how are they copyrighted? In fact, they are not.

Although the dance world is small, it is sprawling. There is no way for Janet Jackson’s choreographer Tina Landon to know that I performed in a senior piece that was stripped from her music video and planted on stage. According to the program notes, the piece was choreographed by a young man who will remain nameless here. To my defense I did not learn of this thievery until a week before the performance when there was seemingly nothing I could do. As the dissemination of dance pieces becomes easier through television and the internet, catching a choreography thief becomes more difficult.

Implications for the Average Choreographer

For now most choreographers, and those who have the rights to restage others’ works, like Mr. Edgerton, depend on trust because choreographic copyright is not a feasible option. As Professor Bromberg stated, “We are small potatoes compared to Balanchine, Tharp, and Robbins. It’s hard enough for people to get their work out. It’s not feasible for choreographers to worry about documenting and registering. When you get big time you get a foundation to do that for you”.

5. Recipes

Adherence to rule can capture the looseness and strictness of actual judgments of sameness.

Allow me to digress for a moment. I believe that there is a similarity to "playing the same game" and reproducing the same dance. We call a wide variety of events `games of poker' in much the same way as we call a wide variety of DAPA-events `Swan Lake'. However, in neither case is one reproducing the identical item. I wish to study this analogy further.

What is it to say that two events are both instances of playing poker? At first, it seems that this is nothing other than to say that both events are events of agents acting in accord with certain rules. We can have two instances of the same game (instances of a type) not because of the physical specifics (cards, players, hands, bets), but because they adhere to the same rules. This is not a mere disjunctive account of a definition but an identity criterion which places the emphasis on the behavioral and participatory nature of the thing identified. It builds into the account room for difference and diversions and even allows for some variations of the rules themselves.

Applied to DAPA-events this analogy can go a long way towards explaining the variations among dance-tokens of a type. It may be that every type carries with it certain rules for reproduction. Some of these types have very detailed and particular rules, while other of these types have rather general rules . Producing one of these works would be, basically, adhering to the rules of reproduction. This could also explain why it is that a dance which adheres to the production rules of `Swan Lake' is `Swan Lake' even if it were historically independent of the tradition of `Swan Lake'.

Imagine that we found a culture, isolated from others, which nevertheless developed a card game with identical rules to those of poker. The question then becomes: should we call it poker or a different game but just like poker? How we respond to this will be determined by whether or not we believed that calling the new found game `poker' commits us to certain beliefs about its historical/causal origins, beliefs which in this case would be false.

Doubtless there are those that would wish to distinguish between them, refraining from calling one poker but not the other. However, I believe this to be a bad choice for practical reasons. As a consequence of deciding the matter this way, merely from witnessing the two events we would be unable to distinguish the legitimate poker from the isolated poker. They would be, on anti-geneticist grounds, the same, though fail to be tokens of a single type. When I saw some game going on I would have to say something like, "Those people over there are either playing poker or a game that is exactly like poker." This strikes me as strange. Normally when I apprehend a game as poker I do not believe that I am committed to various historical beliefs about how the agents came to be playing this game. In fact, I really don't have any historical beliefs about the origins of poker, nor need I have them in order to identify it. Even if I have false historical beliefs about the origins of poker, I do not see how this would prevent me from knowing poker when I see it. It certainly is not explicit in the assertion, and I see little reason for considering it implicit in the assertion either.

A significant point turns on this issue. If one believes that causal/historical ties to the temporally first in the series of tokens are necessary for any later token to be considered a legitimate token of the type, then even a phenomenally indistinguishable ballet could not legitimately claim to be Balanchine's ballet if it was not historically linked to him. On the rules for reproduction account, any production which adhered to the relevant rules (intentionally or accidentally) would count as a token of the type. Since I have argued that no historical tie is necessary for two instances to be instances of the same dance, a "fake" Swan Lake becomes impossible. I shall explain this further below.

My general claim then is this; for two events to both be tokens of a single type work of dance, it is sufficient that they conform to the rules of reproduction that are implicit in the use of the name of the work of dance for the given community of language users. For any given type of a work of dance, if we judge a token as failing to be a token of the type, then the burden is on us to cite some rule which it violates. The sum of these rules constitutes the `rules of reproduction'. A token reproduction may violate some of these rules, but not all (just as there may be some variation from the codified rules of poker for an individual poker game). And since this is the violation of a rule and not simply discarding one of a number of unnecessary disjunctive properties, this violation calls for justification (aesthetic, practical). What rules any given work has differs from work to work.