Protect your moves - A mix of Intellectual Property and Dance

It’s a fairly common thing that when the iconic tones of “Gangnam Style” start playing, the entire dance club turns into an impromptu flash mob with everyone making the same moves. Such global recognition needs to be protected from unscrupulous imitation and also deserves to be rewarded so that the owner of the moves is able to commercialise, license, merchandise and thus, capitalise on his creativity. This is where intellectual property and specifically copyright protection comes into play.

One of the most landmark decisions regarding copyright and dance has been the Martha Graham case wherein the ownership of the dances was in dispute, however, none of the parties in the suit debated on whether the dances were actually eligible for copyright protection. Lawsuits seeking protection of dance moves or sequences are fairly common, with the most recent being the Fortnite case, in which the actor Alfonso Ribeiro, of “The Fresh Prince of Bel Air” fame, filed a suit against the creators of Fortnite - Epic Games - alleging blatant imitation of his special dance moves, i.e., “The Carlton”. Another famous case is of the rapper 2 Milly, who also filed a suit against Epic Games for misappropriation of his “Milly Rock” dance in Fortnite. However, the suit was dropped after a ruling of the US Supreme Court as per which copyright claimants cannot sue for infringement until they have a copyright registration.

Parallelly, the US Copyright Office rejected the copyright application for registering “The Carlton” on the grounds that it failed to meet the requisite standard of a choreographic work since it consisted of a simple combination of three dance steps.

Eligibility criteria:

Identifying whether a dance sequence is eligible for registration is as tricky as dancing with two left feet. For a dance sequence to be copyrightable, it should be unique, original, capable of proving ownership as well as be fixed in writing. Dance being ephemeral in nature, the criteria for fixing in writing is also for the sake of posterity. Further, the dance sequence should not only consist of a simple set of movements or basic moves but demonstrate some level of creativity. Broadly, to succeed in a suit for infringement, the owner should also be able to prove that the dance move has monetarily benefited the infringer. An example of this would be a gamer purchasing a specific dance sequence in a game, which would earn revenue for the game maker.

Position in India:

In India, dance moves are considered as “choreographic works” and are protectable under Section 2(h) of the Copyright Act, 1957 as “dramatic work”. Section 2(h) of the Copyright Act has been reproduced below:

“(h) “dramatic work” includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film”

A plain reading of the above section brings to emphasis two points:

i) the work should be fixed in writing;

ii) the work should not include a cinematograph film.

Section 2 (f)[1] and Section 2 (xxa)[2] of the Copyright Act are relevant for the purposes of defining a “Cinematograph film” and by definition, every recorded work with moving visuals/images will be considered a cinematograph film. Thus, since recording of a dance routine is expressly excluded from the definition of dramatic work, the mode of “fixing” is through reducing the sequence in writing by using dance notation.

The case of Academy of General Education, Manipal and Anr. v. B. Manini Mallya[3] is pertinent to us since it deals with protection of a new version of ballet dance as a dramatic work under Section 2(h) of the Copyright Act, 1957. The Supreme Court in this case opined that copyright in respect of performance of `dance' would not come within the purview of the literary work but would come within the purview of the definition of `dramatic work'. Briefly, the facts of the case were that Dr. Karanth developed a new form of `Yakshagana' i.e., a form of ballet dance. The Respondent filed a suit alleging violation of the copyright in respect of the said dance vested in her, by virtue of Dr. Karanth’s will, alleging that the Appellants infringed the copyright thereof in the dance by performing the same without obtaining her prior permission. The Apex Court expounded on the provisions of fair dealing in this case and held that since the Appellant is an educational institution, if the dance is performed by a teacher or a pupil in the course of instruction strictly or if such performance is conducted before a non-paying audience by the Appellant, the order of injunction shall not apply.

Performer’s right:

Even though copyright protection of choreographic works is in a fledgling stage, the provisions for dancers in respect of Performer’s right are straightforward and precise. Performer’s right, under Section 38 of the Copyright Act, is defined as “Where any performer appears or engages in any performance, he shall have a special right to be known as the “performer’s right” in relation to such performance”.[4] Moreover, Section 2(q) of the Copyright Act[5] defines a performance as “…any visual or acoustic presentation made live by one or more performers”, wherein a performer includes within its ambit, a dancer.[6] The Performer’s right, which include reproduction of sound or visual recording in any material form, issuance of copies, communication to public, selling or renting copy of the recording etc., are exclusive to the performers.[7]However, there is an exception to Performer’s right in the Act for private use, use for bona fide teaching or research, use for reporting current events or for bona fide review and other acts which do not constitute infringement of copyright the Act.[8]

Dance and other forms of IP:

Besides copyright protection, an entire dance performance encompasses within itself various elements, all of which are capable of being protected under some or the other form of Intellectual Property Laws. It is to be noted that even though dance cannot be trademarked, the name of the dance and its representations are capable of being protected under the Trade Marks Act. Further, the method is protectable under Patents Law and the dance costumes and props are eligible for protection under the Design Law. It is interesting to note that the Tap Shoe Patent was published in the USA as early as in 1915!

Conclusion:

The law pertaining to protection of dance sequence as copyright is in its infancy however, owing to sprouting of platforms such as TikTok and games such as Fortnite, several cases alleging copying of iconic dance moves are coming to the fore. Numerous artists are becoming aware of their rights and are seeking protection for the same. Thus, surprisingly, even though dance is in itself very pacific in nature, its protection is fairly litigious. Protection of dance sequence as copyright is gaining traction amongst the industry as well. Remo D’ Souza, a famous Indian choreographer and director had earlier stated that he would seek protection of his dance sequences from one of his movies. He was quoted as saying, “Like a film, dance steps or sequences are creative works. If a script can have a copyright, and so can songs, why can’t dance sequences as well? I want to take this forward...”.[9] Further, choreographer JaQuel Knight of Beyonce’s "Single Ladies (Put a Ring On It)” fame also sought copyright protection for the choreography in the track. As per an article on Billboard[10], Knight is probably the first commercial choreographer in pop music to succeed in registering his work as a copyright. Hopefully, such acts would have a domino effect and many more dancers or choreographers would come forward and seek protection for their iconic moves, which should result in a more settled position of law not only in India, but worldwide.

For any questions, please feel free to write to the author, Ms. Saumya Kapoor, Senior Associate, at saumya.kapoor@iprattorneys.com.

[1] “Cinematograph film” means any work of visual recording and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films [Section 2 (f)].

[2] Visual recording” means the recording in any medium, by any method including the storing of it by any electronic means, of moving images or of the representations thereof, from which they can be perceived, reproduced or communicated by any method [Section 2 (xxa)].

[3] Academy of General Education, Manipal and Anr. v. B. Manini Mallya 2009 (39) PTC 393 (SC), accessible at https://indiankanoon.org/doc/184940/

[4] Accessible at https://www.copyright.gov.in/Copyright_Act_1957/chapter_viii.html

[5] “performance”, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers [Section 2 (q)].

[6] “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance [Section 2 (qq)].

[7] Exclusive right of performers.— (1) Without prejudice to the rights conferred on authors, the performer’s right which is an exclusive right subject to the provisions of this Act to do or authorise for doing any of the following acts in respect of the performance or any substantial part thereof, namely:—

(a) to make a sound recording or a visual recording of the performance, including—

(i) reproduction of it in any material form including the storing of it in any medium by electronic or any other means;

(ii) issuance of copies of it to the public not being copies already in circulation;

(iii) communication of it to the public;

(iv) selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the recording;

(b) to broadcast or communicate the performance to the public except where the performance is already broadcast.

(2) Once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right in the same film:

Provided that, notwithstanding anything contained in this sub-section, the performer shall be entitled for royalties in case of making of the performances for commercial use [Section 38A].

[8] Acts not infringing broadcast reproduction right or performer’s right.— No broadcast reproduction right or performer's right shall be deemed to be infringed by—

(a) the making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research; or

(b) the use, consistent with fair dealing, of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research; or

(c) such other acts, with any necessary adaptations and modifications, which do not constitute infringement of copyright under section 52 [Section 39].

[9] Accessible at https://www.hindustantimes.com/bollywood/right-moves-remo-d-souza-to-copyright-dance-sequences-in-abcd/story-IPfISe1HtaKxWV6vgD8DgJ.html

[10] Accessible at https://www.billboard.com/index.php/articles/business/9477613/jaquel-knight-beyonce-megan-thee-stallion-billboard-cover-story-interview-2020