COPYRIGHT OVER DANCE CHOREOGRAPHY

INTRODUCTION

Choreography is the work of a performing artist. Choreographic works are considered as a part of “dramatic work” to seek protection under the Indian Copyright Act of 1957. The provision of section 2(h) of the Copyright Act makes it clear that choreography falls under the discipline of dramatic work where an expressive form of art with emotion, a story, scenic arrangement, acting, and entertainment is given protection.[1]

Copyright persist in the expression of ideas and not the idea itself. Similarly, the choreographic pattern should be expressed in the form of literary work where the substantial work can be noted down in writing form or captured by way of electronic means.[2]

To become Copyrightable as choreographic work, these principles must be fulfilled:

1. Choreography must be a result of one’s original work.[3]
2. It must be systematic dance steps or following a pattern of steps.
3. Choreography must be produced in a tangible form or be converted into literary form/ writing to gain protection under the Copyright Act, 1957.

Some popular art forms like ballet, Kathak, and Bharatnatyam are based on predetermined rules and notations which are practised in a systematic form, while several other dance forms like Bhangra and freestyle do not follow a specific pattern. The Copyright Act protects a systematic combination of dance steps for registration.[4]

Dance, unlike chemical formula or mechanical process, is an abstract form of art that makes it difficult to gain intellectual property. One problem which the choreographers, performers, artists, or dance crew are facing these days is a financial crisis and societal restriction due to the lack of proper legislation on the protection of choreography.

Elements of Choreography under the Copyright Act, 1957

1. A skilled individual with the intellectual capacity
2. Rhythmic and systematic movement of a body part in correspondence with music, sound or defined pattern.
3. An expressive form of art which depicts a story, plot, character, performance, theme, etc.
4. Must be reproduced in literary or written form.

HISTORICAL PERSPECTIVE ON DANCE CHOREOGRAPHY

The etymology of the word dance is derived from the Greek word ‘Choros, Khoros or Horos’, before the pre-copyright era. In the early 1900s, dance choreography became popular dramatic work and more individuals started occupation in this remarkable field.

The word choreography is not defined anywhere in the Copyright Act, 1957.[5] The definition of choreography is taken from various judicial pronouncements and professionals.  Notwithstanding the legal statutes against infringement and popular opinions of the professionals, the undefined meaning of choreography played as a huge blockade against the growth of choreography in copyright law.

The definition of choreography has changed from time to time. When we look at history, the copyright law of any country did not cover choreography in its dramatic work. Under the Copyright Act priority was given to literary and artistic forms of work where the dance was completely ignored for being an immoral form of art.[6] Dance is the most fundamental expression of feelings and emotions yet it was not considered fit for the theory of dramatic work.

OBSERVATION

Agnes George DeMille, an American dancer and choreographer, in his statement in US Copyright Office in 1959 that it is difficult to grant copyright protection to choreography and dance in a long run. A dance may or may not tell a story of expression, most parts of the dance and most parts of the music do not tell a story. He was of the view that there is no benefit in defining the choreography as a dramatic form of work. Previously, the folk dance like Indian classical dance forms, ballet, ballroom dance were performed by professional artists but now they are in the public domain and hence the question of originality is in controversy.

Whereas, Lucile B. Nathanson, a famous dance educator, favoured copyright protection in choreographic works because he believed that neglecting protection will cause financial harm to the artists. The only way to safeguard the rights of choreographers is by encouraging the reproduction of dramatic work.

Even though the dance forms were available in the public domain, it does not mean the choreographers cannot attain copyright protection in dance choreography. Everything which derives out of talent and intellectual efforts of the creator should be deemed protection.

CASE LAWS FROM FOREIGN JURISDICTION

Massine v. De. Basil (U.K.) (1937)[7], the Ballet form of dance is composed of many elements such as song, story, choreography, notation of the dance moves, costumes, stage view, etc.

In Horgan v. MacMillan Incorporation[8], it was reiterated by the court that Choreography did not have a clear position in the previous US Copyright Act of 1909, but it was only identified under the ‘dramatic work’ of the Copyright Law. The dance choreography was only protected under this legislation if it conveys a story, with expression and emotions or either demonstrated in the form of any conceptual word or idealistic work. The right of a choreographer in his choreography was not identified in the initial stages of development of Copyright law.

Stichel v. Mendes,[9] (France) the court held that choreography must describe the movement which showcases a culmination of human feelings and expression. The composer of dance conducts the choreography and heads the staff that fulfils their roles for that tenure. Therefore the credit for dramatic work goes to the choreographer.

Fuller v. Bemis,[10] (French law) a composition of dance must tell a story/ plot to the audience. It must repeat, mimic the action or speech or any character or drama, emotion etc. The idea expressed in any form will be covered under the subject of Copyright. Dance can be a series of graceful moves, lights, shadows, characters, and depicting emotions in a story. The arrangements of these attributes will not necessarily covey the idea of dramatic work but the person illustrating the song or poem will be covered under dramatic work.

CASE LAWS FROM INDIAN JURISDICTION

In Academy of General Edu., Manipal and Ors. vs. B. Malini Mallya,[11] the Supreme Court held that the ballet dance when reproduced in a literary form qualifies for dramatic work under the Copyright Act, 1957. Therefore, to acquire copyright in choreography/dance work the artist or choreographer must convert it into a writing form where it can be recorded for the registry.

Bikram’s Yoga Coll. of India, L.P. v. Evolution Yoga, LLC,[12] the question was raised here that the systemic and sequential form of yoga is covered under Copyright Act or not? It was held that the yoga sequence, since a form of systematic bodily movement, is not covered under the Copyright Act.

CONCLUSION

Existing research suggests that there is an increasing need for performers to pursue copyright protection for artistic pieces of work, however, now we reach the conclusion that in this era of digitalization of artistic performances and cultural diversity, the existing intellectual property laws do not offer adequate support to the choreography content.

Today, the choreography is becoming more of a business professional than just a form of art, once worshipped. However, the legal system should not be fully entrusted with taking decision pertaining to dance and choreography. Since they cannot appreciate the sanctity of dance just as the details obvious to a trained eye. Fair meaning should be provided to choreography and the performers must get better access to courts and the legal justice system to enforce their copyright.

BY – SOUMYA SONI