Stepping Into the Legal Dance Floor: Exploring the Copyright Landscape for Choreographers

INTRODUCTION

Choreography is the art and technique of designing sequences of movements, often in dance, that serves as a profound mode of expression. The correlation between choreography and copyright lies in the legal safeguarding of original and fixed arrangements of dance movements, recognizing dance as a form of dramatic work and establishing the boundary where artistic expression converges with intellectual property protection. As artistic expressions continue to evolve, legal systems worldwide grapple with the challenge of adapting copyright laws to accommodate the dynamic art form of dance. The 'choreographic work' standard represents the decisive demarcation between a piece of art eligible for copyright protection and a mere set of movements lacking such protection. The precise delineation of this boundary is a central point of contention, serving as the foundation for numerous legal disputes within the realm of copyright law.

UNITED STATES’ APPROACH

Traditionally, in the United States, a work is copyrightable as long as it is fixed in a tangible medium of expression. Prior to the Copyright Act of 1976, American statutory copyright law did not protect abstract copyrights. In the 1976 Act, choreography was included under the category of ‘pantomimes and choreographic works’ under Section 102 (a)(4). Recently, in 2021, an American choreographer JaQuel Knight marked a historic moment by obtaining copyright protection for his dance sequences featured in Beyoncé's "Single Ladies" within the United States of America.

When considering whether a choreographic work is copyrightable, the U.S. Copyright Office defines choreography as the composition and arrangement of dance movements organized into a coherent whole. In order to be protected, the choreographic work must be both original and fixed in a tangible medium that reveals the movements in sufficient detail to permit the work to be performed in a consistent and uniform manner. The acceptable formats of fixation include dance notation such as Labanotation and Benesh Dance Notation, video recordings of a performance, and textual descriptions, photographs, or drawings. In the landmark case of Horgan v. MacMillan, Inc. choreographer George Balanchine sought to enjoin the publication of a book entitled 'The Nutcracker: A Story & a Ballet' featuring photographs of his choreography from the New York City Ballet’s production of The Nutcracker. The Appellate Court ruled the book was substantially similar to Balanchine's choreography, justifying an injunction against its publication.

COPYRIGHT PROTECTION IN INDIA

As per the Practice and Procedure Manual (2018) issued by the Copyright Office of the Government of India, "Choreography and scenic arrangement" is defined as the art of arranging or designing ballet or stage dance in symbolic language. Under the Copyright Act of 1957 in India, choreography is classified as a dramatic work according to Section 2(h). This provision explicitly incorporates choreographic works into the definition, alongside recitations and entertainment in dumb shows. However, the definition is explicitly confined to works that are fixed in writing or by other means, expressly excluding cinematographic works. The inclusion of the term 'or otherwise' introduces ambiguity, allowing for interpretation that may extend to pictorial representations. These uncertainties leave artists seeking protection at a crossroads. Moreover, the exception for "cinematograph film" narrows the scope of Section 2(h) in relation to choreography. Section 2(f) of the Act defines "cinematograph film" as any work of visual recording, encompassing sound recordings accompanying such visual recording. Additionally, "cinematograph" is construed to include any work produced by processes analogous to cinematography, such as video films. If a choreographic work is in a fixed form and not part of a cinematograph film, it satisfies the conditions to be classified as a dramatic work. This interplay between Section 2(h) and 2(f) creates ambiguity for choreographic works, particularly in the context of video recordings. A video recording of a choreographic work does not fall under the category of dramatic work; instead, it is classified as cinematography. According to Section 2(xxa) of the Act, which defines "visual recording," if a person records a video of their dance, the creator of the work cannot claim copyright. In such cases, the rights over the work are vested in the producer of the video, especially when the producer and choreographer are different individuals.

Choreography, to meet the requirements for copyrightability, must exhibit originality, consist of systematic dance moves following a discernible pattern, and be produced in a tangible form. These conditions establish a framework for artists navigating the intricate intersection of choreographic creativity and copyright law in India, requiring careful consideration of documentation methods to secure legal protection for their artistic expressions.

While many dance forms exist across India, not all are eligible for copyright protection. Abundant dance forms are present, and nine of them have been bestowed with classical status, depending on predetermined rules and notations that are practiced systematically. In contrast, a few other dance structures like Bhangra and freestyle don’t follow a particular pattern. The Copyright Act safeguards a systematic combination of dance steps for registration. However, alongside copyright, the doctrine of fair use exists. The inclusion of the doctrine of 'fair dealing' in Section 52 of the Act further emphasizes the nuanced balance between protection and creative freedom in the realm of dance.

In the case of Academy of General Education, Manipal and Ar. v. Malini Mallya, the Apex Court ruled that a new form of a ballet called "Yaksha Ranga" namely the creative extension of traditional Yakshagana, falls under the ambit of dramatic work, provided the same must be iterated in literary format to do so. However, the Court clarified that the Academy could take the benefit of the fair use and observed that “When a fair dealing is made, inter alia, of a literary or dramatic work for the purpose of private use, including research and criticism or review, whether of that work or of any other work, the right in terms of the provisions of the said Act cannot be claimed. Thus, if some performance or dance is carried out within the purview of the said clause, the order of injunction shall not be applicable. Similarly, the appellant being an educational institution, if the dance is performed within the meaning of provisions of clause (i) of sub-section (1) of Section 52 of the Act strictly, the order of injunction shall not apply thereto also. Yet again, if such performance is conducted before a non-paying audience by the appellant, which is an institution if it comes within the purview of an amateur club or society, the same would not constitute any violation of the said order of injunction.”

Further, in the case of Anupama Mohan v. State of Kerala , the Petitioner filed a writ petition in the High Court of Kerala, alleging copyright infringement by the government of Kerala. The Petitioner claimed to hold copyright over the dance and alleged that the Respondent, without her permission, circulated her performance among the public. The Court held the Petitioner to be the owner of the dance choreography.

Conclusion

In various jurisdictions, the challenges surrounding the copyrightability of choreographic works and the determination of the nature and extent of protection have persisted. Unlike India, the United States of America and the United Kingdom allow for the fixation of choreography through any medium, including videotaping. The absence of clear laws and precedents further complicates the navigation of these complex legal issues, making it challenging to establish conclusive guidelines in this domain.

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