SAVING THE (LAST) DANCE UNDER THE INTELLECTUAL PROPERTY LAW REGIME
History bears testimony to the fact that dance has been an integral form of expression in the proliferation of culture. From Kathak or Bharatanatyam to Bollywood dancing and ballet to breakdance, dance is a part of every culture across the world. It is a significant source of intellectual property conflict as it comprises moves or trends that are endorsed by social media influencers (like Instagram Reels, TikTok, etc.) and is hence publicly disseminated. The creators of any art form are concerned about the authenticity of their works in these times of rip offs, when there lies a high scope of passing them off as someone else’screation.
The creator of the dance moves i.e., the choreographers are also beset with this fear and it makes one wonder whether their artistic creation is iable to get legal protection. Copyright is the most apt legal tool that protects their works.
Premised on this understanding, the author would discuss the interface of intellectual property law and dance choreography. The article aims to solve the conundrum of whether the choreographic work extends to single dance moves or whether it applies only to works that combine a sequence of movements into a larger routine
Choreography and Copyright
Choreography is the composition and arrangement of a related pattern of dance movements that are organised into a coherent whole. There are certain common elements in a choreographic work such as rhythmic movements, in a defined sequence and composition. It is concomitant with a musical rendition and is performed by trained individuals.
Such composition and arrangement is copyrightable as choreographic works. The Copyright Act, 1957 includes dance under the category of “dramatic work” in Section 2(h). The provision "includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film".
The U.S. Copyright Act, 1978 inSection 102(a)(4) recognised copyrightability of choreographic works along with pantomimes. The dance had to be an original work and was to be fixed in a tangible object. U.S however, has categorised certain dances and social movements that do not come under the purview of copyright protection. They are social dances, discrete dance movements and simple routines, ordinary motor activities and athletic movements and routines not performed by Humans.
Ideas are not Copyrightable
The pertinent issue of scope of application of copyright laws in dance moves was discussed in the 2009 case of Academy of General Education, Manipal and Anr. v. B. Manini Mallya. The Supreme Court of India, in the notable case, held that the new version of ballet named Yaksha Ranga which was a “creative extension of traditional Yakshagana” would fall under the ambit of “dramatic work” as envisaged in Section 2(h) of the Indian Copyright Act. However, such a dance was to be reproduced in a literary format to be considered so.
Any person that seeks copyright protection for his or her choreography of dance arrangement must keep in mind that their choreography should transcend the limit of a mere idea. It should be ‘fixed’ or recorded in a permanent form to get copyright protection. We can argue for instance that the legendary pop star Michael Jackson’s Moonwalk does not qualify for copyright protection if it’s merely being publicly performed. It is considerably difficult to fix a series of dance movements in a permanent form and it has led to the marginalisation of copyright law.
The Choice of Copyright Protection: Single Dance or ‘Sequence of Steps’ dance
The boom of digital technology saw an immense growth in the popularity of single dance steps. The notable question that arises at this point is whether such a dance move that has come to be associated with a particular performer or cinematographic film or a choreographer can be protected as well. There is no clear position decided in this regard by the legal authorities. It remains debatable whether the tool of copyright only safeguards a sequence of steps in dance or it also extends the protection to a single dance move that involves personal skill and judgement.
There are iconic dance steps like that of the West Side Story that have been copyrighted and the rights to its choreography come with a set guideline that delineate the exact movements. Dance pioneer Hanya Holm was the first person who claimed copyright on her dance notation of choreography in the musical “Kiss Me Kate” in the year 1952. On the other hand, the US Copyright Office in its 2017 circular specified that a short dance routine that “consisted of only a few movements or steps with minor linear or spatial variations” was not going to be registered even if it possessed novel or distinctive characteristics. Recently actor Alfonso Ribeiro’s application for registration of his famous dance in the Fresh Prince of Bel- Air was refused by the US. Copyright Office on the grounds of “simple dance routine”.
One hence wonders that in this era of content creators who strive to create fresh content on the social media platforms such as Instagram and Tik Tok, whether the choreographers who create dance routines would fall under the umbrella of “choreographic work”.
Other Source of Protection- Performer’s Rights
The law regarding copyrighting the dance choreography is still at a developmental stage, it is granted protection under the provisions of performer’s rights. This right is accorded to a performer under Section 38 of Copyright Act, 1957; under Section 2(qq) a performer is defined as “an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance" .
The fate of choreographical works in video format is undetermined after the judgement of Academy of General Education, Manipal and Anr v. Malini Mallya, as that only recognised a dance in a literary or written format. However, the act provides for specific recourse in circumstances such as reproduction, broadcasting or communication of sound or visual recordings to the public with the performer’s consent. The U.K. has allowed dances to be recorded in “writing or otherwise” which provides the authors different methods of fixation (such as notation, film or videotape, photographs, holograms, pictorial or narrative description) to protect or enforce their copyrights.
The different copyright laws across various countries serve a general purpose, that is to create a harmonious balance of interests of the copyright owners and the public. The law never justifies the unfair use of a person’s original work without due permission. Hence, the issue of copyrightability of a single dance versus a ‘sequence of steps’ dance remains debatable wherein many jurisdictions have favoured the latter over former. However, such a position is not always taken, as we see above in the case of West Side Story.
The choreographer JaQuel Knight’s efforts to copyright some of his iconic dance routines like that of Beyoncé’s ‘Single Ladies,’ serves as a harrowing reminder of the hurdles that an artist must face in order to come under the ambit of legal protection. The competition in the field has spiked up and artists often succumb to the pressure of public appeasement. They shy away from producing an original creation because of the fear of failing to appeal to the masses. The dance community has hence significantly changed and this change must be acknowledged by incentivising and encouraging the choreographers to copyright their own work. The legal tool after all, serves as a safety shield against rip offs that seek to reap the benefits of the seeds of the artist’s original handwork.
Title Image Source: Kelly Stephens
This article has been written by Ilina Peehu. Ilina is a third year law student at Gujarat National Law University, Gandhinagar.