Abstract
Historically in the UK dance and copyright law have had very little to do with each other. There have been a couple of court cases, but in general the dance community has had few reasons turn to copyright. That may be changing. In times of austerity, the arts are seen as an “easy” target for cuts in funding. These are often accompanied by calls to become more commercially viable. Developing a business model then depends on having a legal framework—copyright—that can support ownership and exploitation of dance. This paper will consider ownership and exploitation of dance within the context of copyright law. It will highlight the opportunities and challenges posed by digitization and social media, and emphasize the benefits these can bring for dance as it finds a place in our intangible cultural heritage.
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Notes
- 1.
Dance UK Dance facts, accessed 19 October 2015, http://www.danceuk.org/resources/dance-facts/.
- 2.
Creative Industries Economic Estimates, January 2014, accessed 19 October 2015, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/271008/Creative_Industries_Economic_Estimates_-_January_2014.pdf.
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“Creative industries now worth £8.8 million an hour to the UK economy”, accessed 19 October 2015, https://www.gov.uk/government/news/creative-industries-now-worth-88-million-an-hour-to-uk-economy.
- 4.
“True Value of the Music Industry to the UK Economy Revealed”, accessed 19 October 2015, http://www.ukmusic.org/news/true-value-of-music-industry-to-uk-economy-revealed. This is a music industry report. It was well received by Government departments including the Intellectual Property Office.
- 5.
PRS for Music , accessed 19 October 2015, https://www.prsformusic.com/Pages/default.aspx.
- 6.
PRS for Music Royalties, accessed 19 October 2015, http://www.prsformusic.com/creators/memberresources/mcpsroyalties/pages/mcps.aspx.
- 7.
Dance UK, accessed 19 October 2015, http://www.danceuk.org.
- 8.
National Dance Network, accessed 19 October 2015, www.nationaldance.co.uk.
- 9.
Charlotte Waelde and Phillip Schlesinger, “Music and Dance: Beyond Copyright Text?” (2011) 8: 3 SCRIPTed 257, accessed 19 October 2015, http://script-ed.org/?p=83.
- 10.
Martha Traylor, “Choreography, Pantomime and the Copyright Revision Act of 1976,” New England Law Review 16: 227 (1981): 237.
- 11.
See for instance Paul Théberge, “Technology Creative Practice and Copyright,” in Music and Copyright, ed. Simon Frith and Lee Marshall (Edinburgh: Edinburgh University Press, 2004, 2nd ed.), 139, 140.
- 12.
This changed in the wake of digitization and the challenges with dissemination of works on the Internet. More emphasis was replaced on live music . See David Byrne, “The Internet will suck all the creative content out of the world,” 11 October 2013, Guardian, accessed 19 October 2015, http://www.theguardian.com/music/2013/oct/11/david-byrne-internet-content-world.
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“Supporting vibrant and sustainable arts and culture”, accessed 19 October 2015, https://www.gov.uk/government/publications/2010-to-2015-government-policy-arts-and-culture/2010-to-2015-government-policy-arts-and-culture.
- 14.
This is not the only source of funding for the Arts Council. The national lottery gives significant amount of money via the Arts Council to support the arts. Total funding including lottery funding in 2010–11 was £601 million. In 2014–15 it was expected to be £605 million.
- 15.
The Arts Council Plan 2011–15, accessed 19 October 2015, can be found at http://www.artscouncil.org.uk/media/uploads/pdf/Arts_Council_Plan_2011-15.pdf. The plan implements the Council’s strategic vision 2011–21 “Achieving Great Art for Everyone”, accessed 19 October 2015, available at http://www.artscouncil.org.uk/media/uploads/achieving_great_art_for_everyone.pdf: accessed 19 October 2015.
- 16.
Arts Council Plan p. 7.
- 17.
Ibid.
- 18.
“Dance Mapping,” 30 September 2009 and “Joining up the dots: Dance agencies: thoughts on future direction,” 26 May 2010, accessed 19 October 2015. Both available from: http://www.artscouncil.org.uk/what-we-do/supporting-artforms/dance/.
- 19.
“Joining up the dots”, accessed 19 October 2015, p. 26.
- 20.
- 21.
The Statute of Anne, accessed 19 October 2015, http://archive.org/stream/thestatuteofanne33333gut/33333.txt.
- 22.
Ibid., p. 6.
- 23.
The UK law, the Copyright Designs and Patents Act 1988 (CDPA) as amended extends to England, Wales, Scotland and Northern Ireland—see though s 304.
- 24.
E.g. Berne Convention for the Protection of Literary and Artistic Works 1886.
- 25.
Agreement on Trade Related Aspects of Intellectual Property Rights 1994.
- 26.
CDPA ss 16–21. For secondary infringement see ss 22–6.
- 27.
CDPA ss 29, 30, 30A.
- 28.
CDPA ss 31A–31F.
- 29.
CDPA ss 32–36A.
- 30.
CDPA ss 37–40A.
- 31.
CDPA ss 40B–44A.
- 32.
CDPA ss 9–11.
- 33.
CDPA s77.
- 34.
CDPA s 80.
- 35.
CDPA s 86.
- 36.
Massine v. de Basil [1936–45] MacG CC 223.
- 37.
Holland v. Vivian Van Damn Productions Ltd. [1936–45] MacG. Cop. Cas. 69 (Ch. D.).
- 38.
Norowzian v. Arks Limited, [2000] F.S.R. 363 (C.A.). Tom Rivers, “Norowzian Revisited” [2000] E.I.P.R. 389. Richard Arnold, “Joy: A Reply” [2001] I.P.Q. 10.
- 39.
“Split screen: Beyonce ‘Countdown’ vs Anne Teresa De Keersmarker”, accessed 19 October 2015, http://www.youtube.com/watch?v=PDT0m514TMw. Francis Yeoh, “The Copyright Implications of Beyoncé’s ‘Borrowings,’” Choreographic Practices 2013, 4 (1): 95–117; Luke Jennings “Beyoncé v De Keersmaeker: can you copyright a dance move?” Guardian, 11 October 2011, accessed 19 October 2015, http://www.theguardian.com/stage/theatreblog/2011/oct/11/beyonce-de-keersmaeker-dance-move. The story continues with developments that are highly relevant for this discussion: Judith Mackrell “Beyoncé, de Keersmaeker—and a dance reinvented by everyone”, 9 October 2013, Guardian, accessed 19 October 2015, http://www.theguardian.com/stage/2013/oct/09/beyonce-de-keersmaeker-technology-dance.
- 40.
Martha Graham School and Dance Foundation Inc. v Martha Graham Center of Contemporary Dance, Inc., 43 Fed. Appx. 408 (2nd Cir. 2002); Martha Graham School and Dance Foundation Inc. v Martha Graham Center of Contemporary Dance, Inc., 374 F.Supp.2d 355, 363 (S.D.N.Y. 2005); Martha Graham School and Dance Foundation Inc. v Martha Graham Center of Contemporary Dance, Inc., 466 F.3d 97 (2006); Anne Braveman, “Duet of Discord: Martha Graham and her Non-Profit Ballet over Work for Hire”, Loyola of Los Angeles Entertainment Law Review, 2005, 25: 471; Sharon Connelly, “Authorship, Ownership and Control: Balancing the Economic and Artistic Issues Raised by the Martha Graham Copyright Case”, Fordham Intellectual Property, Media & Entertainment Law Journal, 2006, XV: 837.
- 41.
Waelde and Schlesinger, “Music and Dance: Beyond Copyright Text?”.
- 42.
CDPA s 3(1).
- 43.
Creation Records v News Group [1997] EMLR 444.
- 44.
Norowzian v. Arks Limited [2000] F.S.R. 363 (C.A.).
- 45.
University of London Press v University Tutorial Press [1916] 2 Ch. 601.
- 46.
Waelde and Schlesinger, “Music and Dance: Beyond Copyright Text?”; Agnes De Mille, And Promenade Home (Boston, Toronto: Little, Brown and Company, 1956), at 256. “[T]he choreographer is glued immobile as a fly in a web and must watch his own pupils and assistants, suborned to steal his ideas and livelihood. Several dancers made paying careers out of doing just this”; Graham McFee, The Philosophical Aesthetics of Dance: Identity, Performance and Understanding (Alton: Dance Books 2011).
- 47.
[1936–45] MacG CC 223.
- 48.
CDPA s 9(1).
- 49.
Berne Convention Article 2.2 leaves fixation to members of the Union.
- 50.
This is so the extent of the monopoly claimed may be known to others. Tate v Fulbrook 1908 1 KB 821 at 832.
- 51.
CDPA s 3(2).
- 52.
Each of which may have separate protection in their own right.
- 53.
Mireille van Eechoud, “Along the Road to Uniformity: Diverse Readings of the Court of Justice Judgments on Copyright Work”, 3(1) (2012) J.I.P.I.T.E.C. para 60; Christian Handig, “The ‘Sweat of the Brow’ is Not Enough!—More Than a Blueprint of the European Copyright Term ‘Work’,” [2013] E.I.P.R. 1; Andreas Rahmatian, “Originality in UK Copyright Law: The Old ‘Skill and Labour’ Doctrine Under Pressure” [2013] I.I.C. 3; Eleonora Rosati, “Towards an EU-Wide Copyright? (Judicial) Pride and (Legislative) Prejudice” [2013] I.P.Q. 46; Justine Pila, “An Intentional View of the Copyright Work” (2008) Modern Law Review 71; Christian Handig, “Infopaq International A/S v Danske Dagblades Forening (C-5/08): is the Term ‘Work’ in the CDPA 1988 In Line With The European Directives?” (2010) E.I.P.R. 32(2), 53.
- 54.
Case C-5/08 Infopaq International A/S v Danske Dagblades Forening (Infopaq) paras 33 38. See also Case C-393/09 Bezpečnostní softwarová asociace para 45 What is not protected is expression which is limited by its technical function. Case C-406/10 SAS Institute Inc. v World Programming Ltd paras 38–40. Case C-145/10, Painer v Standard VerlagsGmbH et al. In the UK see SAS Institute Inc.v World Programming Ltd [2013] EWHC 69 (Ch.) para 27.
- 55.
Case C-5/08 Infopaq International A/S v Danske Dagblades Forening, Case C-393/09 Bezpečnostní softwarová asociace paragraph 45; Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others; Eleonora Rosati, “Originality in a Work, or a Work of Originality: The Effects of the Infopaq Decision”, E.I.P.R. 2011, 33(12), 746. Estelle Derclaye, “Wonderful or Worrisome? The Impact of the ECJ Ruling in Infopaq on UK Copyright Law” (2010) E.I.P.R. 32(5), 248.
- 56.
See the references in Note 55.
- 57.
Infopaq, para 45; Bezpečnostní softwarová asociace, para 50; Painer, para 89, Football Dataco para 38.
- 58.
Painer, para 92; Football Dataco para 38.
- 59.
Bezpečnostní softwarová asociace, paras 48 and 49, Football Association Premier League and Others, para 98; Football Dataco para 39. See also the articles at Note 55.
- 60.
Sawkins v Hyperion Records Ltd, [2005] EWCA 565.
- 61.
“Birdy—Birdy Gerhl (Anthony and The Johnsons Cover) accessed 19 October 2015, http://www.youtube.com/watch?v=vhZVKYV8kGw.
- 62.
This is what happens with many YouTube videos.
- 63.
Laurajane Smith and Emma Waterton, “‘The Envy of the World’ Intangible Heritage in England”, in Intangible Heritage, ed. Laurajane Smith and Natsuko Akagawa (Abingdon: Routledge, 2009), 289–91. The authors quote an extract from an interview with a representative from English heritage as follows: INTERVIEWEE: The UK has not said that it will ratify [the 2003 Convention] and I think it will be quite a long time before it does. INTERVIEWER: What are the reasons for that? INTERVIEWEE: It is just difficult to see how you could apply a convention of that sort in the UK context …it is not relevant…it just does not fit with the UK approach…I think it would be very difficult to bring in a convention that says we are actually going to list this sort of stuff and protect it. What are the obvious examples you come up with? Morris Dancing? As intangible heritage and so on? The UK has no intangible heritage. (Interview 1, English Heritage, 4 July 2005) at 297.
- 64.
Judith Mackrell, “Stepping Out of The Past: Modern Dance’s Heritage Debate”, Guardian, 21 May 2015, accessed 19 October 2015, http://www.theguardian.com/stage/dance-blog/2015/may/21/modern-dance-the-heritage-debate-rambert-ben-duke-farooq-chaudhry.
- 65.
Sawkins v Hyperion Records Ltd [2005] EWCA 565; Brown v Mcasso Music [2005] FSR 40; Coffey v Warner/Chappell Music Ltd [2005] EWHC 449; Fisher v Brooker [2006] EWHC 3239; Fisher v Brooker [2008] EWCA Civ 287; Fisher v Brooker [2009] UKHL 41; Luke T. McDonagh “Rearranging the roles of the performer and the composer in the music industry: the potential significance of Fisher v Brooker”, I.P.Q. 2012, 64; Dominic Free, “Beckingham v. Hodgens: The Session Musician’s Claim to Music Copyright”, 96 Ent. L R, 2002, 1(3), 93–8; Richard Arnold “Reflections on ‘The Triumph of Music’; Copyrights and Performers Rights in Music” [2010] I.P.Q. 153.
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Waelde, C. (2018). Dance and Law: From Indifference to Rapport. In: Whatley, S., Cisneros, R., Sabiescu, A. (eds) Digital Echoes. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-73817-8_17
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