"Just Dance"- Copyright in Choreographic Work.
When the going gets tough, how do we lighten ourselves? Some of us go on a shopping spree, others listen to music and become a bathroom version of Lata Mangeshkar, while dancing seems like a better option for the rest.
We all have a hidden Freddie Mercury inside us, that loves to shake a leg with or without choreography. Some of us shine naturally, others require a bit of coordination and choreography to get things started. Now the question is what about the rest of us? Social media platforms demand a certain level of creativity in our posts, and we are ready to go to any extent to achieve that creativity. Numerous apps like Tick Tock, Josh, Instagram Reels etc., provide users with the freedom to make short videos of almost anything and everything hence, everyone becomes the next Dancing superstar minus originality. The majority of dance videos are simply reproduction and repeat versions of the original choreographed works without the knowledge of the author. However, there are few legal and questions related to copyright that most superstars overlook.
Copyright is often known as 'author's right' and refers to the rights of the creators over their literary and artistic works. Copyright largely covers books, music, paintings and sculptures, films and technology-based works (such as computer programs and electronic databases). Once Copyright is granted the holder is bestowed with two main rights, > Economic Rights - the right to derive financial reward from the use of his works by others and can prohibit or authorize:
reproduction in various forms, such as printed publication or sound recording;
public performance, such as in a play or musical work;
recording in the form of compact discs or DVDs;
translation into other languages; and
adaptation, such as a novel into a film screenplay.
> Moral Rights- right to claim authorship for work and the right to object to changes in the work that could harm the reputation of the author.
Let's talk about dance, choreography and Copyright
The Indian Copyright Act, 1957 (“Act”) covers “dramatic work” under section 2(h) and 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 dancer is covered separately under the definition of “performer” as under Section 2(qq) of the Act. As per this section, an actor, singer, musician, DANCER, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance is considered a performer.
A choreographer is the author of a unique dance arrangement hence, certain protections must be afforded for their commendable skills. We know that copyright is given for the expression of an idea and not the idea itself. In layman terms, to register a copyright for any choreography, the same should be reduced in a written form or otherwise, but not in the form of a cinematographic film. To ascertain the ownership of a choreography reference is made to Section 2(a)(i) of the Act that states that the author of the work is the author of the dramatic work and as per Section 17(a) an author shall be the first owner of the copyrighted work. In the case of R.G. Anand v. M/s Delux Films & Ors., (1978) 4 SCC 118 it was observed that a choreography pattern should be expressed in the literary form either in writing or by electronic means.
Certain conditions must be fulfilled for a choreographic work to qualify for copyright, namely
The work must be one’s original as held in Feist Publications v. Rural Telephone Service, 99 U.S. 340 (1991)
There must be a systematic pattern or dance step that must be followed. Social dance, discrete dance movements and simple routines, ordinary motor activities and physical skills are excluded from the purview of choreography works. In Bikram’s Yoga Coll. Of India, L.P. v. Evolution Yoga, LLC, 803 F.3d 1032, 1044 the question was whether a systematic and sequential form of yoga was covered under the Copyright Act? It was held in the negative as yoga was a form of systematic bodily movements.
To get protection under the Act, the choreography must be reduced in a tangible form.
India is known as a land of culture and tradition for a reason, apart from numerous religions and languages, various dance forms have been an integral part of our culture. There exist a plethora of dance forms spread across India and the Sangeet Natak Akademi (National Academy of Music, Dance and Drama) bestows the "classical" status on eight Indian dance forms viz., Bharatnatyam, Odissi, Kuchipudi, Mohiniaattam, Sattriya, Kathakali, Kathak and Manipuri. These dance forms are based on predetermined rules and notations which are practised in a systematic form following a systematic pattern. However, there are other dance forms, like bhangra, Garba, freestyle forms that do not follow a specific routine. The Act grants protection to a systematic combination of dance steps for protection.
The Act requires a choreography to have certain elements,
(a) An individual with skills and intellectually capable,
(b) Music, sound or any pattern must have a correspondence with the systematic and rhythmic movements of body parts.
(c) A story or plot, character, theme etc., must be depicted as it is an expressive art form
(d) The same must be reproduced in a literary, written or electronic form. The cinematographic film is not permitted, and the choreography will qualify as a dramatic work if it is a fixed form. Section 2(f) of the act defines “cinematograph film” as 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.
Thus, if one makes a video of the choreographic work it does not fall under dramatic work as Section 2(h) and Section 2(f) create an ambiguity, and instead of falling under cinematography work. Such visual recordings are defined under Section 2(xxa) of the Act and state that the creator does have copyright over the videos, it is the producer who has the right over the work. “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.”
In this technology-driven world, the method preferred for keeping a record of such things is through video recording and the abovementioned exclusion is a barrier to those who wish to get their choreographic work copyrighted.
A celebrated case that dealt with the issue of copyright for a dance work is Academy of General Edu., Manipal and Ors. vs. B. Malini Mallya, Civil Appeal No. 389 OF 2008, arising out of Special Leave Petition (Civil) No. 15612 of 2008. The Hon’ble Supreme Court reconsidered the Fair Use Doctrine and held that the new form of ballet dance i.e., Yakshangana ballet as developed by Dr Karanth qualifies as dramatic work under Section 2(h) of the Copyright Act, 1957. The same was reduced in a written form by way of a will and recorded for the registry thereby acquiring copyright.
In another case Anupama Mohan vs State of Kerala, WP(C). No. 22790 of 2015 (W), the Kerala High Court ruled in favour of the petitioner, a famous Kuchipudi dancer. A writ petition had been filed alleging copyright infringement by the Government of Kerala, as it was alleged the government circulated her dance performance among the public without her permission.
On an international front, recently the famous choreographer JaQuel Knight acquired copyright protection for dance moves of the 2009 song “Single Ladies (Put a ring on it)” by Beyonce. This is an important milestone in the US copyright regime, as this work becomes the first non-ballet choreographic work to be approved for copyright registration. Section 102 of the Copyright Act, 1976 extends copyright protection to “pantomimes and choreographic works” excluding commonplace gestures, gestures, social dances, ordinary motor activities and athletic movements. Dances in grapevine, basic waltz step celebratory end zone dance moves are precluded from copyright protection.
With the rise and proliferation of short-form videos, reels and viral dance trends, there is a looming danger of potential copyright infringement. With the increase in awareness among choreographers about their rights, there has been an increase in choreographic works getting copyrighted. Due to this aggressive pursuance by choreographers in seeking registration and enforcement of registration of their works, companies, social media influencers, and users of social media should carefully consider the repercussions of using and endorsing dance routines and choreographed works that are protected or protectable under Copyright.
This area of law has immense scope for development as cinematographic films and video recordings are being used to record such systematic dance patterns and routines. the scope of choreographed work can be widened to even include such dance routines that consist of maybe 4 steps only, as they are at the end of the day the brainchild of the author who came up with them through his hard work. During this pandemic, everyone seems to have discovered their talents for recreating dance moves and patterns after accessing the original work stored in the form of a video.
Therefore, such video recordings ought to qualify for copyright protection to protect the rights of choreographers and make the entire process approachable, thereby fulfilling the aim of IPR. With the choreographers unable to enforce their economic and moral rights, it is a stain on the attempt to incentivize, promote and protect the creation of people and ensure progress in society.
This is an era of advancement and development in all fields and professions. Due to the increase in cultural diversification, the existing intellectual property law regime nationally and internationally do not offer adequate protection to choreographed works. We have all been dragged to the dance floor at some point in our life, regardless of whether we enjoy it or not, however, we can agree that despite dance being the most expressive art form has been largely underappreciated by us. Till then, on the way to improvement, just dance!
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Diva Rai, “Copyright in Choreography - IPleaders” (iPleadersMarch 18, 2021) <https://blog.ipleaders.in/copyright-in-choreography-2/>
“Frequently Asked Questions: Copyright” (Wipo.int2021) <https://www.wipo.int/copyright/en/faq_copyright.html>
“Put a © on It: Choreography for Beyonce’s Single Ladies Granted Copyright Registration | JD Supra” (JD Supra2021) <https://www.jdsupra.com/legalnews/put-a-c-on-it-choreography-for-beyonce-8009489/>
Shubham Kshirsagar, “May I Have This Dance? Copyrighting Choreography under the Indian Copyright Act” (Mondaq.com October 29, 2019) <https://www.mondaq.com/india/copyright/858432/may-i-have-this-dance-copyrighting-choreography-under-the-indian-copyright-act>
Aishwarya Chaturvedi, “Dance Moves and Copyright” (Legaleraonline.com May 14, 2020) <https://www.legaleraonline.com/articles/dance-moves-and-copyright>