COPYRIGHT FOR DANCE CHOREOGRAPHY
INTRODUCTION
Choreography refers to the skill of combining movements into dance styles to be performed. These movements are usually created by choreographers who through copyright law can claim ownership of the choreography dances as copyrightable work.
In some jurisdictions, a choreography is protected under copyright the moment it is created and fulfils the requirements of originality and materiality. This means that for a choreography to be protected under copyright it must first be original. This means it should be the independent creation of the choreographer and must show evidence of some degree of creativity. Secondly it must be in material form. This means that the choreography must be reduced either in writing or recorded in video form.
This research examines on copyright for dance choreography in Kenya, Nigeria and South Africa in comparison with Australia and India.
COPYRIGHT FOR DANCE CHOREOGRAPHY IN KENYA.
Copyright is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work, given by law to creators. In Kenya Copyright is governed by the copyright act under which the board is established. The primary purpose of copyright is to induce and reward authors, through the provision of property rights, to create new works and to make those works. Section 22 of the Act provides the following works as being eligible for copyright: literary works, musical works, artistic works, dramatic works, audio-visual works, sound recordings and broadcasts.
A dance is considered a creative work that can be copyrighted if it's a coherent whole and not just individual moves. As long as it is an original work consisting of the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole, they are protectable.
However, there are several types of limitations and exceptions to copyright protection. Certain categories of works are excluded from copyright protection if they are not fixed in a tangible form. For example, literal, Musical and Artistic works cannot be copyrighted unless the work has been written down, recorded or otherwise reduced to material form. A work of choreography would only be protected once the movements are written down in dance notation or recorded on videotape.
In Kenya, the Performers Rights Society of Kenya represents the performers such as musicians, thespians, actors and actresses, acrobats, dancers among others. They collect royalties on behalf of members for the broadcasting and public performance of their fixed performances. The performances of dancers are an integral part of the creative process in presentations to the public hence performers should have some rights over those recordings and a share in the proceeds from their commercial exploitation. There is no tangible law yet speaking on dance choreographies in Kenya but proposals have been made to section 30 of the copyright act to make provision for Guitarists, Drummers and Dancers to get equal remuneration from television and radio royalties. If the move is successful, it will be the first time that Dancers and Instrumentalists earn such privileged for work they participate in.
COPYRIGHT FOR DANCE REGISTRATION IN NIGERIA
In Nigeria, the dance culture has greatly evolved in terms of their unique dance moves, patterns of steps and gestures which have gained international recognition. This can been seen from the increased number of non- Nigerians who do dance choreographies from Nigeria on social media platforms such as YouTube and Instagram. This raises various copyright protection issues and thus a need to analyses the Nigerian’s copyright act and the role of the law in protecting dance choreography in the country.
Some of the famous choreography dance moves from Nigeria include
i. Shaku Shaku by Agege from Lagos created in 2017
ii. Zanku by Zlatan from Nigeria created in 2019
iii. Kukere by Akwa Ibom from Nigeria created in 2019
iv. Skelewu by Davido from Nigeria created in 2013
v. Shoki by Agege from Nigeria created in 2014
Section 39 of the Copyright Act of Nigeria defines choreographic work as “a composition of movements for dancing or any other patterned succession of gestures mostly created to accompany music” From the act, choreography is classified as artistic work thus may qualify for copyright protection just like paintings or music. Further, from the definition under Section 39, for a choreography to be protected and from the definition under section 39 it must be composed of a series of various dance moves and thus not any dance would qualify for protection. For instance, a single dance move may not qualify for protection under copyright law.
In a US case Alfonso Ribeiro v. Epic Games the plaintiff sued the defendant for his game avatars having used his famous “Carlton” dance move in their video game alleging copyright infringement. The court dismissed the claim holding that copyright law does not protect a single dance move and that only choreography as a whole can be protected. This case thus shows that for dance choreography to qualify for copyright protection, it must be a series of well put together unique dance moves.
In Nigeria, anyone can come up with a dance choreography and be able to claim copyright protection. To qualify for copyright protection, the choreography must be original and in material form, this means it has to be documented either recorded in video form or written. Also, in Nigeria a work is automatically protected under copyright law without the need for registration. However, it’s important for any creators of choreography dances to register their dances in other jurisdictions so as to make it easier to claim ownership in case of infringement. It’s also important to note that registering such works with the registries at the Nigerian Copyright Commission affords better protection.
Under Section 9 of the Copyright Act, copyright vests in the author of a work. This means that a choreographer is deemed the owner of the copyright. However section 9 of the act outlines exceptions for instance if the choreographer is an employee of an organization or was contracted to create the choreography on behalf of another, the work shall belong to the employer or the contractor respectively.
In Nigeria, the choreographer enjoys exclusive rights of exploitation. This means the copyright owner can make money through grant of licenses for imitation of the dance moves, distributing the work by selling to make money. However, choreographers in Nigeria have been faulted for not taking advantage of these opportunities and this has been attributed to lack of knowledge of their rights as copyright owners.
In conclusion, intellectual property law serves as a legal channel within which choreographers can enforce their intellectual property rights in relation to their choreographic dances. Thus it is important for such creators to protect their works in order to benefit from them.
COPYRIGHT FOR DANCE CHOREGRAPHY IN SOUTH AFRICA.
In South Africa copyright law, choreography is protected under dramatic works. Section 5 of the South African Copyright act provides that, dramatic works includes choreographic works or entertainment in dumb show, if reduced to the material form in which the work or the entertainment is to be presented. Copyright protection in South Africa automatically comes into being since no registration is required. However, this protection is based on a few conditions. These conditions include, that the work is original and has been reduced to material form and also that the author of the work is a South African citizen or domiciled in South Africa.
The South African copyright law has really emphasized that, in order for choreography to qualify as a copyright-able work, the work needs to have substance to warrant protection. A work which is too simple, such as the name of a song of a simple drawing of a circle, would not qualify. It is debatable whether simple movements would have substance to qualify as a copyright-able choreographic work. Individual and separate movements do not qualify for copyright protection. The choreographer has to be able to put together the movements in such a way that it forms part of a cohesive dance with numerous steps and in a way that represents the choreographers’ personality.
The standard of originality is difficult to achieve. In most cases the choreographer would need to show that the move was indeed originated by him and not copied from another source. The basis for originality lies in the composition as well as the execution of the choreography. The choreographer must be able to use their own creativity and imagination to use basic dance moves and create a seamless unique creation. This new creation entitles the choreographer to copyright protection. Provided that the choreographer would be able to prove the elements of copyright and ownership of the work, he would be entitled to object to any unauthorized reproduction or adaptation of the work.
In South Africa, a common law approach to image rights would also provide respite to dance choreographers. Image right include a person’s right to identity which relates to an individual’s unique and distinguishing attributes. When these unique attributes are used without prior informed consent in a way that affects the individuals true image or rather when such attributes are used without consent for commercial gain, the right to identity can be violated even if the choreographer is not particularly insulted or portrayed in bad light.
Therefore, a choreographer could show that the dance moves form part of a collection of unique attributes forming their identity such that the dance move itself is a recognizable image feature and they may have a claim.
COMPARATIVE ANALYSIS WITH:
COPYRIGHT FOR DANCE CHOREOGRAPHY IN AUSTRALIA.
In Australia copyright laws are governed by the Copyright Act cited as Copyright Act 1968.Under the Act, Chorography is listed in the Interpretation section as an example of dramatic work.
How is Dance Choreography Protected in Australia?
Not all choreographic works will be protected under Australian Law. 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. The threshold of originality means that there has to be some elements of creativity. The originality threshold however is not high. The choreography can contain stock elements of traditional steps and moves provided it is dramatic.
For Chorography to be copyrightable, it should tell a story or explore a dramatic idea. When it is in part of a production, it is protected as part of the production. 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.
Copyright in Australia is automatic and there is no requirement of registration for protection. If a copyright holder wants to notify the public that copyright protects your choreographed dance, A copyright symbol (©) should be put in all works. The symbol can be placed in video footage, written notation of choreography or websites that contain information about your dance or choreography.
Who owns the Dance choreography?
As provided in section 35 of the Australian Copyright Act 1968, The person who owns the copyright is the one who developed the copyright (the choreography) . If it is created by a group it is owned jointly. If creation of the choreography is part of his job then his employer owns the copyright. If you want to perform the chirography you must seek the permission of the creator/creators.
Rights of the Dance Choreographer in Australia.
The rights of the copyright holder include right to reproduce the footage and communicate in public i.e. through broadcasting performance, email, putting in the internet/website and perform the work. 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.
Duration of Protection
Since Choreography is categorized as a dramatic work, it is protected for the lifetime of the author plus seventy years after from the end of the first publication. This is provided in Section 33 of the Australian Copyright Act 1968.
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.
COPYRIGHT FOR DANCE CHOREOGRAPHY IN INDIA
Choreography is the structure and arrangement of connected patterns of dance developments that are coordinated into a unified whole. Under the Indian copyright act 1957 dance moves are considered choreographic works and are protected under section 2 (h) of the act as dramatic work where any expressive form of art consisting of emotions, science arrangement, a story, creative steps, acting, and entertainment is given protection which is in form of writing, but does not include a cinematograph film. It implies if somebody wishes to obtain a copyright on choreographic work, he needs to reduce the same into fixed form i.e., written format or videotaped or otherwise but it ought not to be a part of cinematography.
To determine the ownership of choreography reference is made to Section 2(a)(i) of the Act which expresses that the creator of the work is the creator of the dramatic work and according to Section 17(a) a creator will be the principal proprietor of the protected work.
Requirement for choreography to get copyright
There are certain conditions that must be fulfilled for a choreographic work to get copyright namely,
⦁ Choreography must be an outcome of an individual’s original work.
The Act guarantees the registering choreographer the exclusive right to control derivations based on the original work. A derivation would include any transformation or adaption of the original work, any revival that includes significant changes made to accommodate modern dancers or modern styles constitutes a derivative work instead of simple performance.
⦁ It must be systematic dance steps or it must be following a pattern of steps.
For a dance move to be registered under copyright law it should be creative, original, unique, and consist of systematic dance steps. It should not consist of basic dance movements but have some level of uniqueness in order to prove the ownership. Social dance, discrete dance movements and simple routines, ordinary motor activities, and physical skills are excluded from the purview of choreography works.
Bikram’s Yoga Coll. Of India, L.P. v. Evolation Yoga, LLC, it was held that since yoga sequence is a form of systematic bodily movement, it is not covered under the Copyright Act of 1957.
⦁ Choreography must be induced in a tangible medium or be converted into literary form to attain protection under the Indian Copyright Act, 1957.
In the case of Academy of General Education, Manipal and Anr. v. B. Manini Mallya, the Apex Court expounded that dance performance will not come under the ambit of “literary work” but will come under the ambit of “dramatic work” visualized in Section 2(h) of the Indian Copyright Act. Therefore, to acquire copyright in choreography/dance work the artist or choreographer must convert it into a writing form where it can be recorded for the registry.so.
If the choreographic work is in a fixed form and not a part of cinematograph film then it satisfies the condition to be a dramatic work. Under Section 14(a) of India Copyright Act, 1957, a dramatic work has an exclusive right of reproduction, issuing copies, adaptation etc, given under the Act.
Elements of Choreography under the Copyright Act, 1957
1. A skilled individual with the intellectual capacity.
2. Rhythmic and systematic movement of a body part in correspondence with music, sound or defined pattern.
3. An expressive form of art which depicts a story, plot, character, performance, theme, etc.
4. Must be reproduced in literary or written form.
Another source of protection
There are various other rights available to dancers in India such as performer’s rights, these are covered under Chapter VIII of the Act. Section 2(q) of the Copyright Act defines performance, in relation to performer's right, means any visual or acoustic presentation made live by one or more performers. In accordance with Section 2(qq) of the Act, the Indian Copyright Act defines a performer to include actor, singer, musician, dancer, acrobat, juggler, conjurer, lecturer and anybody else who performs.
Performer's rights are defined as 'when an artist appears or performs in a performance, the person shall have a specific right to be known as 'the right of the performer' in regard to that performance' in accordance with section 38 of the Copyright Act.
The primary difference that exists between copyrighting a dance sequence and performer’s rights are that performer’s rights allow them the autonomy over all the audio and video recordings and any reproduction/distribution/or any other such acts would be considered as an infringement of the individual’s performer’s rights.
In the case of Anupama Mohan vs. State of Kerala, the petitioner claimed that her dance performance was circulated by the State government in the absence of seeking her permission. The Kerala High Court ruled in her favor, thereby preventing the infringement of her copyright.
Exceptions to Copyright Protection
However, there are certain exceptions in which the creator of dramatic work cannot sue the user for infringement. When the dramatic work of creator is used for “FAIR USE”, the creator cannot utilize the said remedy. Fair use is such as used for the purpose of private use or personal use, including research or for criticism or review whether of that work or of any other work.
Academy of General Education, Manipal and Anr. v. B. Manini Mallya, the Court held the appellant being an institution for education, the Apex Court set forth the provisions of fair treatment in this case, and held that the order of injunction is not applied if the dance is carried out by a teacher or a pupil during education or if it is carried out strictly in front of a non-paying hearing by the appellant.
Challenges of copyright for dance choreography in India.
Choreography is included under the definition of ‘dramatic work’ as per the Indian copyright act, which makes an exception for cinematographic works. This may give rise to certain problems.
Firstly, the Indian Copyright Act, 1957 does not align with rapid technological advancements. Contrary to the earlier times, when few established dance forms were usually recorded in certain literature, the present scenario is different. With the emergence of new, less systematic, and flexible dance forms, it becomes very difficult for the choreographers to have them ‘fixed’ in a literary form.
Second, the copyright act restricts the mediums through which a choreographic work can be fixed. Most choreographers today find it much easier to have their dance sequences recorded and preserved in the form of videos. However, due to the exclusion of cinematographic works from the definition of ‘dramatic works’, it becomes difficult for them to easily gain copyright over their original dance sequences. The reason behind this irrationality being that a videotape is not considered as a ‘dramatic work’ for it to gain copyright protection under the act.