Dance: an intangible art in need of tangible protection

Dance is at once intensely personal and universal. It promotes individual creativity, but it also serves as a lingua franca for humans across space and time. Many dances have anonymous creators and seem to have existed forever. Others are instantly associated with the person, group or culture that invented them, or are given new meaning when performed in a certain context. Clearly, original choreographic work should be protected by the law as intellectual property; artists should be recognised and rewarded for their achievements. On the other hand, as a ubiquitous and powerful mode of expression, dance should not be stifled by regulation. Somehow, lawmakers have had to draw a line between dance as a product and dance as a human instinct.

In the US, for example, a choreographic copyright is only legally enforceable once it has been registered with the Copyright Office. For this to happen, according to the Copyright Act 1976, the choreography must be an original work – not a ‘social dance step’ or ‘simple routine’ – which is ‘fixed in any tangible medium of expression.’ Requiring copyright registration allows claimants and courts to approach cases of alleged copyright infringement with more certainty. In 2018, for instance, Alfonso Ribeiro claimed that two video games had incorporated a dance that he had created while playing the character of Carlton in The Fresh Prince of Bel-Air. However, Ribeiro dropped the suit after the US Copyright Office refused copyright registration for the ‘Carlton dance,’ which it considered ‘a simple routine.’

In the UK, by contrast, the law regulating choreography copyright remains blurry. For an artistic work to be copyrightable, it needs to be original and to have been recorded, whether in writing or otherwise (Copyright, Designs and Patents Act 1988). However, there is no requirement of copyright registration, meaning that the originality of the work is left to be judged by the court. As a result, it might not always be clear when a copyright claim can legitimately be brought, potentially leading to unnecessary litigation. This lack of registration for copyrights seems particularly arbitrary considering there is a routine process for approving and registering other intellectual property through patents and trademarks.

More importantly, within the 1988 Act, choreography is unjustifiably appended to the category of ‘dramatic works’. This lack of a clearly defined position for choreography is problematic, as becomes apparent in the Act’s discussion of copyright infringement through adaptation. Section 21 defines adaptation as including the conversion of a dramatic work into a non-dramatic work. However, this can only be applied to choreography with a storyline, a rarity in contemporary choreographic work. Indeed, the misguided attempt to label choreography as a ‘dramatic work’ was one of the driving forces behind the introduction of the 1976 Copyright Act in the US.

Some might welcome the vagueness of the UK’s choreography copyright law, claiming that the elusive, intangible nature of dance makes it unsuited to legislative formulas. However, the view that reforming copyright law is not an issue is an issue in itself. The law serves a normative function, and its failure to acknowledge choreography implies and perpetuates a lower status of dance among the arts. Indicating the value of choreography would initiate a virtuous circle. Defining the economic rights of choreographers might not only provide financial incentives, but would also boost creativity. This, in turn, would lead to greater acknowledgement and appreciation of choreographers’ work. In the digital era, as dances can become more fixed and reach wider audiences through recordings, their creators must receive the protection and recognition they deserve.

- Katherine Wood, Harris Manchester College