INTRODUCTION
Dance moves can become more than a means of self-expression, in today’s digital age. They can also become cultural phenomena or even viral content on social media. From the evergreen “Moonwalk” to the eccentric “Carlton Dance”, some dance moves are easily associated with famous artists. However, who is the actual owner of these moves? Can particular dance moves be copyrighted? This has been subject to question in the recent times. Without being restricted to any one jurisdiction, this article explores the topic with the aid of current copyright law and case laws.
FOUNDATIONS OF COPYRIGHT LAW
Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.[1] It can be understood that it is a type of intellectual property right, which grants an author, the power to restrict for a finite period of time, how others may use his/her work.[2] Legislation per se, typically does not contain comprehensive lists of works covered under copyright law. But the following type of works are protected by copyright. They include;
- Literary works such as poems, reference works, novels, plays, newspaper articles
- Computer programs
- Films, musical compositions and choreography
- Artistic works such as paintings, drawings, photographs
- Architecture [3]
However, only expression of ideas is protected by copyright law and not ideas, processes, operational procedures and mathematical concepts, in general. This is referred to as the “idea-expression dichotomy.[4] Both economic rights – which enable the owner to profit monetarily from the use of his work and moral rights – which enable the owner to forbid the use of his work by third parties – are conferred by copyright law.
PROTECTION TO CHOREOGRAPHY
Section 2(h) of the Indian Copyright Act 1957, includes choreography to be under the head of dramatic works.[5] . But choreographic works have been subject to copyright protection since the Federal Copyright Law of 1976. The US Court of Appeals examined a number of important problems pertaining to the copyright of choreographic works for the first time in its ruling in the case of Horgan v Macmillan According to the Court, “Explicit federal copyright protection for choreography is a fairly recent development and the scope of that protection is an uncharted area of the law”.[6] Looking at the Indian context, in the case of Academy of General Education Manipal v B. Malini Mallya[7], it was established that dance moves and choreography enjoy protection as dramatic works and in the case of Anupama Mohan v State of Kerala, the petitioner asserted that she was the owner of the copyright to the dance in issue, and that the respondent had shared her performance without her consent. The court determined that the dance choreography was owned by the petitioner[8]. The following requirement must be fulfilled in order for a choreographic work to be protected by copyright:
- It has to be a work of authorship – to be made by a human for human individuals to perform.
- The choreographer must provide a significant amount of new, independently produced work that exhibits enough originality.
- It must be fixed, meaning it must be written or recorded in a tangible format. Dance notations, pictures, sketches or even video recordings of the performances can satisfy the fixation requirements.[9]
Whether or not a choreography is registered with the copyright office, the creator has exclusive rights over the work as long as it satisfies the requirements of authorship, originality and fixation.[10]
CAN INDIVIDUAL DANCE MOVES BE PROTECTED?
It is now known that laws provide copyright protection for choreography as a whole. However, the law does not support copyright protection to particular dance moves. For instance, choreographic works that are original works of authorship are protected by the US Copyright Law as long as they exhibit originality and creativity. Individual dance steps or simple movement are deemed too simple to quality for copyright protection and originality. Because they are seen as building blocks, rather than complete creative expressions, individual dance moves – no matter how unique – are compared to brief musical compositions, which are likewise not protected. This is in line with a larger theory of copyright law, which holds that fundamental expressions or widely accepted movements cannot be monopolized since they must be available for imaginative use and reinterpretation by the creative community.
For example, even though Michael Jackson’s moonwalk is intricate and unique, it is still regarded as a solo dance motion rather than an actual scripted performance. It cannot benefit from copyright protection, even if it might be subject to right of publicity or even a mark. It is also crucial to consider that the moonwalk is based on “backsliding”[11] dancing moves that existed before Michael Jackson made it popular, through his work. Their origins can be traced back to street entertainers and dancers such as Cab Calloway in the 1930s.[12] Culturally shared ideas, methods or concepts are not protected by copyright and the moonwalk’s resemblance to pre-existing moves further disqualified it from being considered a completely unique work.
CASE LAWS
Alfonso Ribeiro v Epic Games, Inc. (2018): The “Carlton Dance” made popular by Alfonso Riberio (actor & comedian) on the Fresh Prince of Bel-Air, was at issue in this case. Ribeiro claimed that Fortnite’s creator, Epic Games, had unlawfully used his famous dance as an emote that could be purchased by players and use it in the game. The suit was withdrawn by Ribeiro after it was apparent that the dance move was found ineligible for copyright protection.[13]
2 Milly v Epic Games, Inc (2019): 2 Milly, a rapper, sued Epic Games for their unauthorized use of his “Milly Rock” dance as a Fortnite emote. He contended that his distinctive dancing technique had been exploited by the game makers. According to the same reasoning as in the Carlton Dance case, the case was withdrawn by 2 Milly. [14]
CONCLUSION
Individual dance moves, unlike whole pieces of choreographic works, are frequently not protected by law since they are seen as components of expression rather than stand-alone works of choreography, even though intricate choreography might be copyrighted. I feel that, in order to preserve and own their works, creators should turn to alternate legal protections for their works, like trademarks or publicity rights, as viral dance moves, continue to influence the entertainment world.
[1] Copyright, https://www.wipo.int/copyright/en/. (Last accessed: 31st Oct.2024, 1:26 PM).
[2] Why Copyright Matters, Ministry of Law Singapore https://www.mlaw.gov.sg/why-copyright-matters/copyright/. (Last accessed: 31st Oct.2024, 1:28 PM).
[3] Copyright, supra note 1.
[4] Id.
[5] Copyright Act, 1957, Section 2(h), Acts of Parliament, 1957 (India).
[6] Julie Van Camp, Entertainment, Publishing and the Arts Handbook 60-61 (1st ed. 1995).
[7] Aathira Pillai, ACADEMY OF GENERAL EDUCATION MANIPAL v. B MALINI MALLYA, Law Essentials (Mar. 9, 2022), https://lawessential.com/ip-case-laws/f/academy-of-general-education-manipal-v-b-malini-mallya. (Last visited: 5th Nov.2024, 11:13 PM).
[8] Divanshi Gupta, Stepping Into the Legal Dance Floor: Exploring the Copyright Landscape for Choreographers, Candcip.co (Mar. 9, 2022), https://lawessential.com/ip-case-laws/f/academy-of-general-education-manipal-v-b-malini-mallya. (Last visited: 5th Nov.2024, 11:19 PM).
[9] Marc D Ostrow & Ellie Sanders, Copyright and Choreography: Protecting Choreography in Theatrical Productions, Romano Law (Oct. 2, 2023), https://www.romanolaw.com/copyright-and-choreography-protecting-choreography-in-theatrical-productions/. (Last accessed: 21st Oct.2024, 1:41 PM).
[10] Id.
[11] Lawrence Husick, Ask Dr. Copyright © About Dance, Lipton, Weinberger & Husick (Jan. 18, 2024), https://garson-law.com/ask-dr-copyright-about-dance/. (Last accessed: 31st Oct.2024, 1:45 PM).
[12] Slacker G, Cab Calloway Moonwalking in 1932, Squier-Talk (Oct. 14, 2021), https://squier-talk.com/threads/cab-calloway-moonwalking-in-1932.188852/. (Last accessed: 31st Oct.2024, 1:48 PM).
[13] Adi Robertson, The ‘Carlton dance’ couldn’t be copyrighted for a Fortnite lawsuit, The Verge (Feb. 16, 2019), https://www.theverge.com/2019/2/15/18226180/copyright-office-alfonso-ribeiro-carlton-fresh-prince-dance-rejected-fortnite-nba-2k-lawsuit. (Last accessed: 31st Oct.2024, 1:53 PM).
[14] Jordan Crook, 2 Milly files a lawsuit against Fortnite maker Epic Games over dance move, Tech Crunch (Dec. 7, 2018), https://techcrunch.com/2018/12/07/2-milly-files-a-lawsuit-against-fortnite-maker-epic-games-over-dance-move/. (Last accessed: 31st Oct.2024, 1:54 PM).
Authored by: Sarferaaz Khaan
LLM in Intellectual Property & Technology Law, National University of Singapore
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