Chicago Dance Gazette Copyright for Choreographers: What is a Copyright
By Amy Chen, Juris Doctors
A few years ago, Martha Graham’s choreographic legacy was threatened when the executor to her estate asserted copyright ownership over all of Graham’s work. If her estate was correct, all dance companies and schools including The Martha Graham School and Dance Foundation would have needed permission from the executor, most likely in the form of hefty monetary fees that most dance companies can ill afford, in order to perform her works.
However, the Second Circuit Court of Appeals ruled that even though Graham was founder and owner of the Foundation, her choreographic works made after the Foundation’s creation were “works made for hire” as an employee of the Foundation. Therefore, the Foundation was the rightful copyright owner of these works and could continue to perform them and allow other dance companies to perform them unencumbered, thus saving Graham’s choreographic legacy.
The Graham case illustrates how copyright law is important to choreographers in protecting and passing on their choreographic work.
In the next few issues of the Chicago Dance Gazette, I will attempt to lay- out a few important facets of copyright law as they pertain to choreographers. These articles are not meant as an extensive primer on copyright law. Copyright law in choreography can be a complicated subject, but a little knowledge goes a long way.
What is copyrightable subject matter?
United States of America copyright law sets out clearly that choreographic works of pantomime and dance are protected subject matter under copyright law.
To get a copyright a work must be “original.” Originality requires independent creation (not copied) and minimal creativity. For example, dances like “The Itsy Bitsy Spider” or “The Hokey Pokey” are not copyrightable. However, believe it or not, if a choreographer were change the movements slightly by making them a little bit different, or adding gestures, this new work would be original, and would be copyrightable.
What is a copyright?
A copyright owner, the choreographer in this case, has the exclusive right to reproduce in copies, distribute by sale or rental, publicly perform, and display their work and prepare derivative works. More importantly, having a copyright means that the choreographer can exclude other people from doing these things.
If anybody else wants to copy, distribute, perform or display the choreographer’s work, they would have to seek permission from the choreographer, and the choreographer would have the right to ask for compensation (usually pay) for the use.
However, choreographers can give their work away for free if they want to. A choreographer can give free permission on an individual basis. The choreographer can also allow everybody to use their work by dedicating it to the public.
The “Fair Use” exception:
Choreographers should be aware that others may be allowed to copy their work for purposes such as criticism, news, comment and scholarship. For example, a television station may use a clip of your choreographic work for giving a review or editorial. A school might show a recording of your choreographic work to dance students, or might stage your choreographic piece on students for a free recital.
The “fair use” exception is not black and white. For example, if a private dance studio stages your choreographic work on its students for a paid performance, that might be copyright infringement, not fair use.
How is a copyright created?
Copyrights come into existence when a work is “fixed in a tangible medium of expression.” For choreographic works this can be accomplished by a video recording of the piece, or written choreographic notation. Once this fixation occurs, the choreographer has a copyright.
There are methods for registering a work with the United States copyright office, but for most choreographic works this is not necessary. Your copyrights still exist and you can seek compensation if somebody infringes upon your rights whether you register with the federal government or not. However, it is worth noting that federal registration does lead to slightly stronger rights and can mean greater compensation in the case of infringement.
How long does a copyright last?
Currently a copyright for a known author lasts for the life of the choreographer plus 70 after the death of the choreographer. The choreographer can designate by contract, will or trust whom the copyrights for a particular work should go to at death.
For anonymously created works, or works created under pseudonym, the copyright lasts for 95 years from publication, or 120 years from creation, whichever expires first.
Other copyright issues to be aware of: Coming Up in Future Issues of the CDS Gazette!!!
The biggest issue in copyright for choreographers is ownership.
One of the big ownership issues for choreographers is “works made for hire,” and works created by “independent contractors.” Another issue is collaborative works and joint-choreographic situations. These will be discussed in future articles.
However, you don’t have to understand the intricacies of copyright law to avoid an ownership dispute.
COMMUNICATION, Communication, communication!!! If you are concerned about whether you will retain copyright ownership in your work talk to the people around you—to your employer, your contractors and your dancers.You can avoid future conflict by making sure that everybody is on the same page as to choreographic ownership.
Legal advice doesn’t have to be expensive. A little bit of web research can answer most questions that choreographers might have about copyright law.
There are also organizations geared towards artists that will do pro bono legal work, such as Lawyers for the Creative Arts: http://law-arts.org/funders.htm
And finally, if there are specific copyright issues that you would like to see covered in future articles, contact me at achen.kent@iit.edu!