Copyright and Choreography : Study in USA and India

O body swayed to music, O brightening glance How can we know the dancer from the dance? —William B. Yeats, Among School Children (1927)

The word ‘choreography’ is derived from the Greek word choreia meaning ‘dance’ and grafos meaning ‘to record’. In contemporary usage, choreography has come to mean dance embodying artistic creation, beauty or emotion, created primarily for the pleasure of the observer.

Whether it be USA or India, both States ignored the muse of dancing (in Greek mythology), Terpischore for a long time. Indian Copyright Act was enacted in 1957 to rectify the long inflicted wrong on producers of choreographic works. It was in 1909 in USA when choreographic works were entitled to protection under copyright law.

In USA, choreographic works (which were not communicating a story) have been copyrightable since January 1, 1978, the date when the Copyright Act of 1976 came into operation. Previously, some choreographic works had been eligible for copyright, but only under the class of dramatic works. In India, however, choreographic works are still protected under the category of dramatic works.

Although several choreographers have registered their copyrights in the past fifteen years under the new Copyright Law, only one case for the infringement of a copyrighted choreographic work has reached the Federal courts. In the 1986 decision of, Horgan v. MacMillan, Inc., the U.S. Court of Appeals for the Second Circuit, considered for the first time, several significant issues regarding the copyright of choreographic works. As the Court noted,

Explicit federal copyright protection for choreography is a fairly recent development, and the scope of that protection is an uncharted area of the law.

In India, there has been no case law which can be of assistance in defining what kind of choreographic works are entitled to protection under the Copyright Act of 1957.

There are many differences between the copyright legislation in USA and India in relation to choreography.

The core argument of the researcher is that Indian copyright law suffers from many fallacies in regard to choreographers’ rights. Presence of several inadequacies make it extremely difficult, if not impossible for Indian choreographers to get the same protection as authors of literary, musical or dramatic (implying dramas) works receive. Indian Copyright Act, 1957 does need major amendments in order to serve its purpose of protecting choreographers from infringement.

Copyright and choreography- in USA

History

Previous to the legislation on hand, choreographic works were entitled to protection only if they were telling a story or the choreographic works entailed a dramatic composition. Fuller v. Bemis is a case in point. Loie Fuller endeavoured to copyright her choreography for Serpentine Dance in the late nineteenth century. When she sued for infringement, the court held that it was not protected as it was merely “the devising of a series of graceful movements, combined with an attractive arrangement of drapery, lights, and shadows, telling no story, portraying no character, depicting no emotion.”

The purpose of copyright law is to ensure general benefit to the public stemming from the efforts of the author, thus it is quite ironic and tragic why choreography was excluded for long from the domain of copyright protection. Article 1, Section 8 of the US Constitution states: The Congress shall have power to promote 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. Even choreographic works were as entitled to copyright protection as literary works were. This necessitated enactment of a copyright legislation which protected choreographic works and soon the Copyright Act of 1909 was substituted with the Copyright Act of 1976.

Copyright Act of 1976

A significant thing to note is that choreographic works have not been defined in the Copyright Act of 1976. Even the amendments in September, 2010 did not in any way affect the rights guaranteed to producers of choreographic works. The author will firstly, be making a reference to text of the Act and as to what over time has come to be included in the definition of choreographic works.

Protection Given to Choreographic Works

Section 102 · Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in 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 device. Works of

authorship include the following categories:

(4) pantomimes and choreographic works

The House and Senate Reports use identical language to say that choreographic work is one of several with “fairly settled meanings,” and that it is not “necessary to specify that ‘choreographic works’ do not include social dance steps and simple routines.” The House Report alone refers to the Act’s “explicit recognition of all forms of choreography.”

The precise meaning of “choreographic works” is not clear, however, from prior statutes or case law. Nor is there any evidence that Congress intended to limit “choreographic works” to those which were protected previously under the category of dramatico-musical work. Indeed, the creation of the new category of “choreographic works” in the copyright law suggests that Congress intended to create a broader class of protection. Clearly, Congress intended that the Copyright Act provide categories eligible for protection with “sufficient flexibility to free the courts from rigid or outmoded concepts of the scope of particular categories.”

In the absence of further guidance from the statute or case law, the meaning of “choreographic work” must be developed from common usage. The definition of dance has received extensive consideration by dance theorists, historians, and philosophers. The American Heritage Dictionary defines choreography as “1. the art of creating and arranging ballets or dances. 2. The art and technique of dance notation. 3. The art of dancing.” As (2) suggests a technique or procedure and (3) a performing skill, only (1) remains as an example of authorship, as required by the statute.

Human movement would seem to be the central element of dance, but it is at least arguable that even this requirement is too narrow. In Duet, Paul Taylor and his partner do nothing but sit on stage, in silence, for three minutes. In 1942, George Balanchine choreographed Circus Polka to music by Stravinsky “for 50 elephants and 50 beautiful girls” for the Barnum and Bailey Circus.

Another issue in defining “dance” is whether or not it should include a requirement of “presentation to an audience.” This requirement excludes purely social and recreational dances, which is consistent with Congressional intent.

In Horgan v. MacMillan, Barbara Horgan, as executrix of the estate of George Balanchine(renowned choreographer), sued MacMillan publishers for infringement of the copyright on Balanchine’s Nutcracker ballet. Horgan sought a preliminary injunction to stop publication of a book (The Nutcracker: A Story & A Ballet) that MacMillan was about to publish containing photographs of Balanchine’s Nutcracker. The U.S. District court denied the injunction on the grounds that the photographs did not infringe the copyrighted choreography. Horgan appealed this decision to the U.S. Court of Appeals for the Second Circuit. The Appeals Court held that the lower court had used the wrong test for infringement, reversed the decision, and remanded the case to the lower court for further proceedings, using the correct infringement test. At that point, the parties settled out of court. Even so, the decision of the Appeals Court, a case of “first impression,” provides important guidance on legal principles for the infringement of copyrighted choreographic works.

The Horgan decision sheds some light on how to define “choreographic work” under the new Copyright Law. The District Court had said that choreography “is the flow of steps” in the dance. MacMillan publishers had argued in this case “that the central characteristic of choreography is ‘movement.’” Although the Court of Appeals disagreed with the District Court in the standard of infringement to be applied, it did not disagree with the view that “the flow of steps” or the “movement” is the central characteristic of a choreographic work protected under the Copyright Act,1976. However, the Court of Appeals held that the district judge took a far too limited view of the extent to which choreographic material may be conveyed in the medium of still photography. A snapshot of a single moment in a dance sequence may communicate a great deal. It may, for example, capture a gesture, the composition of dancers’ bodies or the placement of dancers on the stage. Such freezing of a choreographic moment is shown in several photographs in the book.

Choreography not only includes classical dance forms like ballet but also modern and ethnic dance forms. Movement of marching bands in parades and sports events is also choreographed. Amateur or professional performances in ice figure skating shows, stage movements of actors in opera (besides those which are purely dance portions) accompanied by music, dance movements accompanying launch of automobiles or any other sales promotion event, circus productions which entail dance movements of humans and animals are all carefully choreographed to fit in a specific time frame. Thus, they receive protection under the 1976 Act.

Rights Pertaining to Choreographic Works

Section 106: Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly;

One of the reasons for the inclusion of choreographic works in the 1976 Act was emergence of new technologies which make it possible for the work to be recorded. Previously, notation systems existed but very soon it became easy for the works to be recorded on videotape which necessitated the drafters of the legislation to provide protection to choreographers.

               The exclusive right of public performance is expanded to include not only motion pictures, including works recorded on film, video tape, and video disks, but also audiovisual works such as filmstrips and sets of slides. 

        Right of Public Display.--Clause (5) of section 106 represents the first explicit statutory recognition in American copyright law of an exclusive right to show a copyrighted work, or an image of it, to the public. The existence or extent of this right under the present statute is uncertain and subject to challenge. The Act gives the owners of copyright in choreographic works including the individual images of a motion picture or other audiovisual work, the exclusive right ``to display the copyrighted work publicly.'' This provision, along with Section 102(a) made it possible for Barbara Horgan to successfully sue MacMillan publishers for infringement of Balanchine’s Nutcracker. The Court held that publishing unauthorised pictures of Nutcracker amounted to infringement.

Copyright Regime and Choreography in India

Section 13 of the Copyright Act, 1957 states:

(1) Works in which copyright subsists - (1) the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-

(a) original, literary, dramatic, musical and artistic works

Section 2(h) of the 1957 Act points out that dramatic work includes choreographic works. There is no provision of the Act which explicitly states that communication of story by means of the dance is not necessary for granting protection to the choreographic work.

Academy Of General Edu.,Manipal & Anr. Vs. B. Malini Mallya held that Yakshagana Ballet is a form of musical dance drama played in the open, air and also called as “Open-air Drama” (Bayalaata) and it combines in itself the forms which are, written literature music to set the song to proper tunes and the elements of scenic arrangement, costumes all get interwoven into the Yakshagana Ballet. Yakshagana ballet was protected under ‘dramatic work’.

However, Yakshagana ballet was communicating a story. In India since the inception of the Act no case has come before the courts in which definition of ‘choreographic work’ was mooted. Is it necessary that the dance be used to communicate a story? The question remains unanswered till date.