Maryland Bar Bulletin
Publications : Bar Bulletin : March 2010

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 BAR BULLETIN FOCUS: INTELLECTUAL PROPERTY  

From the very beginning of ballet, people have sought to own the exclusive rights to their accomplishments. In 1653, King Louis XIV created dance steps to impress his court, and then promptly forbid everyone else from performing them. King Louis maneuvered the situation so that he was the "best dancer" in France not by gaining more skills but by forbidding people from performing movements more impressive than he could accomplish. This was the first time that anyone had held the exclusive rights to movement.

Ballet has progressed rapidly since the 17th century. Today, all professional dancers have mastered nearly every movement existing in the vocabulary, and choreographers are free to use all of them. The issue today is not the rights to individual steps but the combination of those steps, choreography. Major choreographers were isolated for much of the 17th and 18th centuries and had little exposure to the work of their peers, so there were few opportunities for work to be copied, thus the idea of "owning" one's work, as established by King Louis, was forgotten.

The development of the legal protection for ballet is an extremely intricate and complicated matter that remains unsettled today.

Intellectual Property Law

The issue of how to preserve the work of choreographers predates the inception of intellectual property laws by hundreds of years. Prior to 1976, choreographers had no option for protecting the licensing of their work other than to create their own controls. Their procedure, established by years of precedent within the arts community, begins with the director of a company requesting permission to use the work from the choreographer. The choreographer, or a representative, then visits the company to ensure that the dancers are technically capable of performing the work and that they have appropriate resources to stage the piece. These customs have proven effective as choreographers continue to use this informal method instead of pursuing legal protection.

Profit-Incentive Theory

The dominant theory in intellectual property law is the profit-incentive theory. This provides the creator with a period of time during which no one else can copy their work, giving the creator the opportunity to reap the profits. However, choreographers seek the protection granted by intellectual property laws so that they can control who uses their work, in what capacity and how. Choreographers want to prevent others from altering their work and, thus, changing or diluting its quality, which is known as the quality control principle.

Quality Control Principle

Congress added coverage of choreographic works to copyright legislation in 1976 under the quality control principle. The quality control principle acknowledges that artists desire not only economic protection by also artistic protection. While choreographers are entitled to the economic profits derived from their work, they are also entitled to:

  • The right to be known publically as the author of the work.
  • The right to prevent someone else from claiming ownership of their work.
  • The right to prevent one's own name from being associated with the work of a third party or with one's own work altered in some way.

Requirements for Copyright Protection

In order for a piece of choreography to be protected under the copyright laws it must satisfy three requirements. First, it must qualify as a choreographic work as defined by Congress, meaning it must be "the composition and arrangement of dance movements and patterns usually intended to be accompanied by music." Second, it must be original, meaning that a person may not simply perform another's work and have it copyrighted. Finally, the work must be fixed in some tangible manner, which usually means that the work has been recorded, though sometimes choreography is transcribed or notated.

Exception The Work for Hire Doctrine

Choreographers who create works for someone else, as an employee, are not entitled to obtain copyright protection for their work. Factors used to determine whether a work is a work for hire include:

  • The method of payment,
  • the existence of a contract,
  • the source of the resources used to create the work,
  • the location that the work takes place in,
  • the hired party's freedom to create the work schedule, and
  • the hired party's role in hiring dancers.

This provides a severe limitation on choreographers who often rely on established companies and schools to create their work.

Conclusion

While there are easily millions of choreographic works created in the United States every year, very few purport to be original and/or worthy of copyright protection. It is important that those choreographers working to create new works and shape the development of dance be afforded the protection of the law to maintain the integrity of their work.

Katrina L. Wallace is a former editor-in-chief of the University of Baltimore Intellectual Property Law Journal and is an associate at the Law Office of Paul S. Blumenthal.


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Publications : Bar Bulletin: March 2010

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