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Making the Right Moves – Choreography and Copyright

Making the Right Moves – Choreography and Copyright

15 December 2012

Media Lawyer Irving David, a partner at DWFM Beckman Solicitors, explains about copyright and choreography

Anyone who creates something original – whether it be a painting, a literary work, a piece of music or a choreographic work – quite naturally expects to be identified as the author of the work and to be compensated for his or her creativity.

So it is with choreography, which can be defined as ‘the composition and arrangement of dance movements intended to be accompanied by music’. Dance and mime are protected as dramatic works; those that have movement, a storyline or action.

Dance practice

Choreography has been protected by UK copyright law since 1911 (although, surprisingly, protection in the USA only began in 1976). This meant that the composers, Rogers and Hammerstein, received substantial payment for their 1943 musical and literary copyrights in Oklahoma! but that Agnes de Mille received no ongoing royalty payments for her choreography.

The UK Copyright Act, 1988 gives the owner of the copyright in a 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.

“For a choreographic work to be entitled to copyright protection, it needs to be ‘fixed’ or recorded in some permanent form”

Who is the author of a work and, therefore, the first owner 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.

There is no such thing as ‘copyright in an idea’. So if 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 his or her 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.

Not so with a series of performance movements. 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 70 years after the death of the choreographer; or if there are co-authors, then until 70 years after the death of the last survivor.

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 a filmmaker or TV producer will need permission from all the copyright owners, including the owner of the choreography, before he or she can exploit the film or recording.

Irving David

Please note that ISTD teachers may use ISTD syllabus exercises as part of their ISTD teaching, although the work remains copyright of the ISTD.

DWFM Beckman offers expert legal advice for all involved in dance. Irving David has advised Scottish Ballet and the British Ballet Organization; is a board member of the internationally-acclaimed Orchestra of the Swan; a full voting member of BAFTA, the British Academy of Film and Television Arts; gives frequent Master Classes for the Music Managers Forum and the Music Publishers Association; and contributes regularly to various trade publications such as Dance UK News on legal and commercial issues relevant to music and dance. For more information on this topic, please contact Irving David, Partner at DWFM Beckman on 020 7872 0023 or email irving.david@dwfmbeckman.com

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