Shall we dance: dancing and copyright law
Katherine Giles is a former Solicitor at Arts Law.
The Copyright Act provides for different categories of protection for different types of works; from literature to art, and film to choreography. Choreography is protected as a 'choreographic show' – a sub-category of 'dramatic work' – under the Copyright Act. The choreographic show may also be a dramatic work if it has a narrative or tells a story. In a musical, the choreography may also be protected as part of the show, which is a dramatic work in itself.
Originality and material form
Not all choreographic works will be protected under Australian law, as copyright does not protect ideas or styles. It is only the expression of that style or idea that is protected.
To be protected by copyright the choreography must be original and it must be in material form. Material form means that it must be documented or recorded in some way – written down using dance notation, recorded on film or video. Sound recordings are also a sufficient method of fixing a work in material form, but are unlikely to be relevant to dance.Many dancers use special notation such as Labonotation, Benesh, Eshkol-Wachman Movement Notation or Sutton Dance Writing to put their choreography in material form.
When the choreography is put into material form there will also be separate copyright in the choreography, the notation as a literary work and the film or video as a cinematograph film.
Duration of copyright protection for choreographed show (dramatic work)
As a dramatic work, a choreographic show will be protected for the lifetime of the author plus seventy years after their death. This twenty year extension from fifty years to seventy years after the death of the creator is a result of the AUSFTA 1 January 2005 amendments to the Copyright Act. This means that if the choreographer died before 1 January 1955 then their work will no longer be protected by copyright as the duration of copyright will be lifetime of the author plus 50 years.
How to protect copyright in choreography
Copyright exists automatically in Australia so there is no need to register choreography to obtain copyright protection. Choreographers can, however, use a copyright notice to notify the public that they are copyright owner and the work is protected by copyright. For example, © Martha Graham, 1990 (which can be placed on the film or video footage, or the written notation of the choreography).
Who is the copyright owner?
The general rule is that the choreographer owns copyright in the choreography and has moral rights in relation to the work. There are exceptions to this general rule, for example, if the choreographer is employed as a choreographer. It is always best to seek legal advice if you unsure who the owner is.
What rights does the copyright owner have?
The owner of copyright in choreography has exclusive rights under the Copyright Act to reproduce the work, communicate the work to the public – broadcasting performance, email, putting on internet/website – and perform the work in public.
So this means that dancers usually need to get permission from a choreographer to dance their dance! If a dancer uses a substantial part of a choreographic show protected by copyright and reproduces it, communicates it to the public or performs the work in public without the choreographer's permission, the dancer will most likely be infringing the choreographer's copyright. Substantial part is not a distinctive quantity, but is the essence of the work, or an important, distinctive or recognizable part of the work and could include a collection of movements or a sequence of steps.
Dancers can contact Ausdance (Australian Dance Council) who may be able to assist or provide further information for dancers wanting to use a particular choreographic show. In the USA the Dance Notation Bureau of New York is responsible for housing scores by artists such as George Balanchine, Paul Taylor, Antony Tudor, Bill T. Jones, Doris Humphrey, William Forsythe, José Limón, Laura Dean, and about 155 others.
Moral rights are separate from copyright, but contained in the Copyright Act. Moral rights cannot be given away but a choreographer can consent to certain things being done to their work. Moral rights ensure the choreographer's right to attribution as the creator, the right not to have the work falsely attributed and the right of integrity in the work.