Navigating Intellectual Property Rights In The Sustainability Of Performing Arts-Dance And Danseuse
The session on ‘Art And Law’ held on 12th March 2020, organized by Dakshina Chitra Utsavam Festival by Kalakshetra Foundation at Thiruvanmiyur, had eminent speakers like- Prabha Sridevan, the former Justice of Madras High Court and Ex-Chairperson of IPAB (Intellectual Property Appellate Board), and senior Intellectual Property Rights Lawyer M.S. Bharath, presiding over the session and explaining the laws protecting a Performing Artiste’s right not to be copied and highlighting on the role of IPR in Dance on a broader spectrum.
To point out, that today’s generation raised on conformity, with easy access to and advancing technology copies others irresponsibly and naively, sacrificing artistic integrity at the altar of instant recognition. If in the bid to stay ahead in the race, one relinquishes truth itself, wouldn’t art be shorn of its beauty? After all, Art is nothing if it is not honest. Truth is beauty and beauty is truth. This is where intellectual property rights come into the picture. There is a need for dancers to protect their creations from getting infringed.
IPR are those exclusive rights given to the owner for a unique creation for a stipulated period of time pursuant to the provisions of the act.
The fundamental clause being, the person who creates it, owns it. Registration of the copyright is advisable. There is a moral right, the right to be recognized as owner, and an economic right, a right to royalty or a right to sell. Copyright laws can protect the creator’s work for his lifetime and for 60 years. If it is a joint production each owns their individual contribution, the period of copyright will be 60 years from the date of release. As per the Berne Convention, if it is uploaded on the net, it is protected for the same period without registration. But, for uploading permission needs to be sought from the artiste’s, else it will be a Criminal offense. And, in the case of violation, the onus to enforce his rights rests on the owner of the copyright.
INSTANCES WHERE CHOREOGRAPHIES WERE GRANTED INTELLECTUAL PROPERTY RIGHTS PROTECTION
In a landmark case, Lalgudi G. Jayaraman And Others Vs. Cleveland Cultural Alliance, where the subject matter of the case falls within the purview of Intellectual Property Right, the dispute was related to a production namely ‘Jaya Jaya Devi’ a dance ballet, which was composed and choreographed by the plaintiffs, and the production was staged by the defendant. At some point in time, the defendants sought an assignment of copyright in the ballet. However, as no agreement could be reached between the plaintiffs and defendants, the copyright in the ballet continued to vest in the plaintiffs. The defendants then publicized their plans to revive the dance ballet and the plaintiff’s consent was not taken. The Court held in session by Justice V. Ramasubramanian said “ it was clear from the language of section 17 of the Copyright Act that as a matter of general rule, the author of a work was the first owner of the copyright therein.” And hence, the Madras High Court granted a permanent injunction concerning production.
In another notable case of Anupama Mohan Vs. The State Of Kerala, the petitioner who is a famous Kuchipudi dancer, filed a writ petition in the High Court of Kerala, alleging copyright infringement by the Government of Kerala. The dancer alleged that the state Government without her permission circulated her performance among the public. The court ruled in favor of the dancer.
EXTENT OF APPLICABILITY OF IPR
A dance performance integrates several elements of creativity, many of which are protectable as intellectual property in the form of Copyrights, Industrial Designs, and Patents. Like, representations used by dancers can be protected as Trademarks and their identity under the Publicity Rights Regime. 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 Trademarks Act. Further, the method is protectable under two patent laws, and the dance costumes and props are eligible for protection under the design law. Protecting IP provides dancers, choreographers, dance musicians, artists, and lighting experts the opportunities to license, merchandise, and commercialize their work.
In India, dance moves being choreographic works are protected under section 2(h) of the Copyright Act, 1957. Choreographic work falls within the meaning of dramatic work under copyright law. According to section 2(h) “dramatic work” includes any piece of recitation, choreographic work, or entertainment in dumb show, the scenic arrangement or acting, a form of which is fixed in writing or otherwise, but does not include a cinematographic film.
A plain reading of the above section brings to emphasize two points:-
1. The work should be fixed in writing.
2. The work should not include a cinematographic film.
Examples of fixation of one’s work have been defined by the World Intellectual Property Organization(WIPO), such as the work written on paper, stored on a disk, painted on canvas, or recorded on tape.
Section 2(q) of the Copyright Act, defines a performance as “any visual, acoustic presentation made line by one or more performers, wherein a performer include within its ambit a dancer.
Section 38 of the Copyright Act defines a performer’s right:- “where any performer appears or engages in a performance, he shall have a special righto be known as performer’s right” in relation to such performance.
Now, to determine the ownership of a choreographic work, we need to refer to section 2(a) (i) which defines the author of a dramatic work as the author of the work and section 17(a) defines the author shall be the first owner of the copyrighted work.
Referring to the famous case of Academy Of General Education, Manipal, And Another Vs. B. Manini Mallya 2009(39) PTC 393 (SC), was cited as an example of IPR in dance, where the Supreme Court held that a new form of ballet dance ‘Yakshagana’ which is reproduced in a literary format is considered as a dramatic work. Thus, if a person wants to register the copyright in a choreographic work he/she will be required to reduce it in writing or any other form and apply for registration in that form only. Supreme Court stated: “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 the provisions of clause(i) of subsection (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 amateur club or society, the same would not constitute any violation of the said order of injunction.”
In India, famous choreographer Remo D’Souza had earlier stated that he would seek the protection of his dance sequence from one of his movies.
Landmark decisions abroad like-
The Maratha Graham Case, wherein the ownership of the dancers was in dispute. The Court held that the Centre owned copyrights over choreographies with respect to 45 of Martha Graham’s dances as they were made during her employment tenure with the Centre and the School. Applying the work for hire doctrine, the Court concluded that all copyrights in the dance works created by Martha Graham during her course of employment belonged to the Centre and not the Trust as claimed by Portas.
Another instance has been the Fortnite Case, in which Actor Alfonso Ribeiro of the “The Fresh Prince Of Bel-Air” fame filed a suit against the creators of Fortnite-Epic games, alleging blatant imitation of “the Carlton dance” moves.
Rapper 2 Milly also filed a suit against Epic Games for misappropriation of his “Milly Frock” dance in Fortnite.
Further choreographer Jaquel Knight of Beyonce’s “Single Ladies” fame also sought copyright protection for the choreography in the track.
From the above-given instances, it can be stated that protection of dance sequence as Intellectual Property is gaining traction amongst the society at a larger scale and many dancers and choreographers would come forward and seek protection for their iconic moves, not only in India but worldwide. Numerous artists are becoming aware of their rights & are seeking protection for the same. Thus, surprisingly, even though dance is in itself very pacific in nature, its protection is fairly litigious. Hopefully, the acts of many dancers would have a domino effect which would result in a more settled position of law globally.
3 .Ownership of Copyright and the Rights of the Owner, Chapter-Iv https://www.advocatekhoj.com/library/bareacts/copyright/index.php?Title=Copyright%20Act,%201957