Dance and Copyright: Legal “Steps” for Performers

October 30, 2018

By Adelaide Saucier.

Legal “steps” for dancers and choreographers: What are the legal basics for performing artists to protect their works? What does copyright entail? What is the legal recourse to infringement?

In 2013 French artist Orlan began her suit against Lady Gaga in French court for copying her facial implants.^[i] Orlan argued that Lady Gaga was “free-riding” on her creations, that Lady Gaga created a conflation of her universe and Orlan’s, leading an audience member to believe that the two are interconnected or an extension of one another. As well, Orlan would need to prove that her work inspired Gaga’s in some manner. Orlan faced multiple hurdles, because (1) she filed in French court and the court does not necessarily have jurisdiction over American parties to the case, (2) because Lady Gaga is known for outrageous costumes and characters and (3) Lady Gaga was already a major pop star at the time of the suit, and it is unlikely that she “free-rode”, having a mass following of her own. Accordingly, the French court ruled that Lady Gaga did not infringe and even made Orlan pay Lady Gaga legal fees.^[ii] This seems like an extreme award and outcome for two women whose work when seen side by side do appear to be similar.

This recalls the controversy around  Beyonce’s 2011“Countdown” song, which accompanied by a music video which strangely resembles the earlier work of Belgian choreographer Anne Teresa de Keersmaeker. In 1983, the budding choreographer presented her new choreographic work Rosas danst Rosas as part of the Kaaitheater Festival in Brussels. She later created a seminal piece, Achterland in 1990. In 1997, de Keersmaeker represented Rosas on a larger platform, filming her world renowned visual art as a movie. However, de Keersmaeker did not fully protect her work, as she did not register her work with the Copyright and Trademark office, and Beyonce’s later creation looks strikingly similar to de Keersmaeker’s former two choreographic works.^[iii] Beyonce’s video mirrors de Keersmaeker’s choreographic sequences, costumes, and setting and yes, while de Keersmaeker is the creator, being the author does not grant her with extensive rights against the 2011 “Countdown” video.

This begs the question: just how far must performers go to protect their own creation? Especially across borders, because it does not seem to be enough to be the original creator of an expressed idea. Additionally, what can European artists do against famous American trendsetters?

How Performers Face Issues of Copyright

All art is mimetic to a certain extent, and dance is no exception. Dancers grow up exposed to “greats” such as Balanchine and Bausch. Instructors go to lengths to get licenses to perform in the style of Fosse or Ailey, shaping the dancer’s movement language. Yet, even in their revolt from the styles imbued upon their bodies over the years, dancers still embrace the influence of their predecessors. The beloved “Moonwalk Dance” popularized by and often accredited to Michael Jackson, was first expressed by Cab Calloway as early as 1930. Bill Bailey popularized it in tap under the different name of “The Backslide” at the Apollo Theatre in 1955; and even internationally and across different mediums, Marcel Marceau made use of the Backslide, or “Moonwalk”, in the 40s in France in his mimed “Walking Against the Wind.” The list goes on and it seems that in every decade until Jackson performed it on live television in 1983, a new utility for the moonwalk entertained audiences. Yet legally, no one has claimed ownership of the choreographic move. No one is “wronged” by the fact that the Moonwalk has been reproduced time and time again by different people for different endeavors. It is recognized as a ubiquitous, reusable dance move, and that is all it is: a singular move. The Moonwalk is not a work protectable by Copyright Law because it is a “social dance step” or “simple routine,” which is explicitly not covered under copyright law.^[iv] The U.S. Congress specifies that they understad that these movements are not protected by copyright because social dance steps or simple routines lack the “originality” requirement. ^[v]

The rejection of what has come before us spawns great creativity and new contribution to dance languages, however, using what has been created before becomes an issue when the “rightful owner” stakes a claim in body movement. The law draws a line between respecting another’s creation as a contribution to the greater choreographic oeuvre and art as a commodity or a possession. What protection, if any, would de Keersmaeker be granted for her work without the safeguard of a registered copyright? Hypothetically, does de Keersmaeker have any recourse against Beyonce’s supposed plagiarism? And if she does, is it worth it to pursue that recourse? Beyonce could just as well, and likely would, settle the case before costs of litigation accrue, squashing any enlightenment the court may proffer on the copycat issue as it pertains to dance. Settling would allow Beyonce to pay a remedial sum to de Keersmaeker before even going to court, avoiding the expensive, time consuming, and public litigation route.

How Does Copyright Protect Dance?

The easiest way to claim authorship of a dance is through copyright. A work is protected by copyright the moment it is created, but it is not fully enforceable unless it is registered. There are three conditions to be fulfilled in order to claim copyright before a court and to ask for damages.

First, the choreography must fall under the definition of “work” according to the 1976 Copyright Act: here, dance is qualified as “pantomimes and choreographic works.”^[vi]

Second, the work must be an original work and in a fixed and tangible medium.^[vii] While there is no set definition of what qualifies as “originality,” the court in Feist Publications v. Rural Telephone Service set the standard for originality as a low bar requiring two factors: (1) that the work is the independent creation of the choreographer; (2) that the work exhibit some degree of creativity.^[viii] Thus, Dance experts and fact finders essentially determine if choreography qualifies as “original.”^[ix] De Keersmaeker’s choreography is original because it expresses her ideas in a tangible form on the dancer’s bodies. Rosas is a layered work exploring the “bodily exhaustion of dance” and femininity, however, denying to be categorized with her more feminist predecessors, like Isadora Duncan.^[x] While Beyonce is familiar with these general ideas, de Keersmaeker expressed her idiosyncratic ideas of dancing itself, through repetitive “exhausting” movement, and femininity, through sharp movements accompanied by softness or subtler movements. Most notably personal is de Keersmaeker’s post-modern vocabulary contextualizing her ideas in movement phrases never before seen.

For dance, the “fixation” element becomes an issue because dance is an inherently ephemeral medium. It is performed one evening, or season, and maybe not again. The work is only viewable if one is present at the performance. If the choreographer wants the choreography memorialized, she must take steps to have the work recorded in a material, tangible medium. Once a video recording of a choreographic work exists, there is sufficient cause to register it for copyright protection.^[xi] The other and more nuanced way to fix choreography in a tangible medium is through a choreographers notation. Notation is a more refined and detailed way to capture the specifics of the choreography than video. Often, the choreographer can dictate the notation to someone or write it herself, but this type of fixing can be costly and time consuming.^[xii] Thus, most choreographers set their choreographic work up to be captured and preserved in video form.

Third, copyright exists from the moment the work is fixed in the tangible media, but the author will not be able to claim it to its full extent before a court unless it is registered. That said, choreography and other momentous visual arts do not become fixed upon the dancers: it fixes to a flash drive or CD-ROM, whenever the choreography is recorded and documented, video format or notation.^[xiii] Because de Keersmaeker is Belgian, registration is not mandatory for her as per the Berne Convention streamlining accessibility to copyright protection internationally.^[xiv]

What Does Copyright Mean for Choreographers?

Copyright, in general, allows an artist: 1) The right to reproduce or make a copy of the dance work (videotape, film and so forth), i.e. de Keersmaeker reproducing her staged choreographic works in video format. 2) The right to prepare derivative works such as adaptations or new versions, for example, if de Keersmaeker herself had staged Beyonce’s “Countdown” video. 3) The right to distribute copies to the public by sale or other transfer of ownership, or by rental, lease or lending. 4) The right to perform the work publicly. 5) The right to display a copy of the dance by means of a film or slide or television image. Again, the right to reproduce the choreography by film lies with de Keersmaeker, not Beyonce.^[xv]

In determining whether or not a choreographic work has been infringed, the Court will consider whether an infringing copy is substantially similar to the original. Works of a different medium can infringe one another, as in the case of Horgan v. MacMillan where the claim stated photographs infringed upon choreography.^[xvi] Even if the original choreographic work could not be completely recreated from the infringing copy, if it is qualitatively significant, there is a case for infringement.^[xvii] In de Keersmaeker’s case, Beyonce infringed upon her choreographic sequencing, her chosen aesthetic for the dancers, and the specific setting of the piece. If de Keersmaeker had registered her copyright, she would likely have a case against Beyonce for infringement of her choreography.

What If The Work Was Not Registered?

It is not a hopeless case if a US choreographic work is not copyrighted, however, the remedies available are few. The choreographer of an unregistered work, while she may not sue for infringement, can file for an injunction, barring the third party from further use of the work.^[xviii] The choreographer may also be rewarded actual damages, or profit damages. However, these are often hard to calculate and therefore seldom awarded, and again, to commence a suit for damages in the first place, the copyright must be registered.^[xix] Calculation for damages is complicated because it is difficult to quantify what a choreographer has lost by another profiting from use of her work. Title 17 bars the creator of unregistered work from receiving statutory damages and attorney’s fees, which is a set and easily determined amount.^[xx] Conversely, the benefit of having a registered copyright is the ability to be awarded a calculable statutory amount. So we must ask ourselves, hypothetically speaking: for what remedies could de Keersmaeker ask?

Actual damages are the dollar amount of any demonstrable loss the copyright owner suffered as a result of the infringing activity, such as loss of sales, lost licensing revenue, any other provable financial loss directly attributable to the infringement.^[xxi] In de Keersmaeker case’s this would not apply; if anything, more attention was brought to her because of the commercial success and popularity of Beyonce. Her case shows the limits of this legal framework, because, yes, de Keersmaeker gets recognition, but at what cost? Are we encouraging stealing as long as there is some equity?

Profit damages are those received if one can prove lost profits because of someone else’s infringing work, and the profits lost were due in part to the infringing item.^[xxii] Although, the court often does not award actual damages and profit damages because they are hard to prove. The cost of going to court is more than any reward the court could benevolently decide to give.

An injunction is the other option for unregistered works; however, injunctions may not last forever and only act retrospectively, meaning they only protect the original creator from the already created and released work. When considering the grant of an injunction, the court looks to what irreparable harm, if any, will occur to the original creator if the injunction is not granted and weighs that against potential injury to the new creator if it is granted.^[xxiii] Cause for an injunction is similarly difficult to prove and in the case of de Keersmaeker and Beyonce, Beyonce’s injury would be greater than de Keersmaeker’s harm. The court would also consider the public policy of barring such a pop icon from “creation.”

Conclusion: Register, Register, Register

The best way to protect an original choreographic work is to register it’s copyright. This will give the work a higher threshold of protection and a legitimacy to protecting the integrity of creation. Although copyright registration is not required in the EU, it might be necessary to prove that there has been a copying of some kind, as shown in the Lady Gaga case lost by the French artist. Furthermore, this case seems to confirm that pop-stars will remain on their pedestal. Often, the intention of the creative world and the legal world seem to be at odds, the legal world promoting proprietary boundaries and the creative world promoting contribution and sharing. The law picks up where dance custom drops off. The law protects creations for their creators and from those going beyond the line of inspiration and into the realm of plagiarizing. Maybe the law does defeat the sanctity of the creative voice, but better to be protected by the law than destroyed by a fellow creator.

^[i] Rea, Naomi. “French Artist Orlan Must Pay Lady Gaga and Universal $18,000 in Fees Following Unsuccessful Lawsuit, French Court Rules.” ArtNet. May 29, 2018.

^[ii] Id.

^[iii] Hecker, Elissa. “If You Sue Me You’re Out of Your Mind.” The Entertainment, Arts, and Sports Law,  Nov 7, 2011.

^[iv] H.R. Rep. No. 94-1476, 54 (1976)

^[v] Id.

^[vi] 17 U.S.C.A. § 102.

^[vii] Id.

^[viii] Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 111 S. Ct. 1282, 1287, 113 L. Ed. 2d 358 (1991).

^[ix] Leslie Erin Wallis, The Different Art: Choreography and Copyright, 33 UCLA L. Rev. 1442, 1454 (1986).

^[x] Floor Keersmaekers. “Womanhood in Rosas danst Rosas.” Rosas. June 2017.

^[xi] 85 A.L.R. Fed. 906 (1987)

^[xii] Leslie Erin Wallis, The Different Art: Choreography and Copyright, 33 UCLA L. Rev. 1442, (1986)

^[xiii] Id.

^[xiv] “Copyright Registration and Documentation Systems.” WIPO. 2018.

^[xv] Arcomano, Nicholas. “The Copyright Law and Dance.” The New York Times. 11 Jan. 1981.

^[xvi] Horgan v. Macmillan, Inc., 789 F.2d 157 (2d Cir. 1986)

^[xvii] Id.

^[xviii] 17 U.S.C.A. § 502.

^[xix] 17 U.S.C.A. § 504(b).

^[xx] 17 U.S.C.A § 412.

^[xxi] Stim, Richard. “Copyright Infringement: How Are Damages Determined.” NOLO, MH Sub I, LLC. 2018.

^[xxii] Id.

^[xxiii] Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1462 (5th Cir. 1990).

Selected Sources :

• Arcomano, Nicholas. “The Copyright Law and Dance.” The New York Times. 11 Jan. 1981
• Floor Keersmaekers. “Womanhood in Rosas danst Rosas.” Rosas. June 2017.
• Hecker, Elissa. “If You Sue Me You’re Out of Your Mind.” The Entertainment, Arts, and Sports Law, Nov 7, 2011.
• Horgan v. Macmillan, Inc., 789 F.2d 157 (2d Cir. 1986)
• Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1462 (5th Cir. 1990)
• Lauren B. Cramer, “Copyright Protection for Choreography: Can It Ever Be ‘En Pointe’? Computerized Choreography or Amendment: Practical Problems of the 1976 U.S. Copyright Act and Choreography”, 1 Syracuse J. Legis. & Pol’y 145, 148 (1995)
• Leslie Erin Wallis, “The Different Art: Choreography and Copyright”, 33 UCLA L. Rev. 1442, (1986)
• Past Pluto Prods. Corp. v. Dana, 627 F. Supp. 1435, 1441 (S.D.N.Y. 1986)
• Rea, Naomi. “French Artist Orlan Must Pay Lady Gaga and Universal $18,000 in Fees Following Unsuccessful Lawsuit, French Court Rules.” ArtNet. May 29, 2018.
• Stim, Richard. “Copyright Infringement: How Are Damages Determined.” NOLO, MH Sub I, LLC. 2018.
• 85 A.L.R. Fed. 906 (1987)

About the Author: Adelaide Saucier is a 2L at Tulane University School of Law. She has an undergraduate degree in Art History with a minor in Dance from Chapman University and hopes to pursue a legal career which incorporates her first love of art. She can be reached at asaucier@tulane.edu.

Disclaimer: This article is intended for general information only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Opinions expressed are those of the author.