Editor’s note: This article is the first in a four-part series on the issues of Copyright in Dance. As a result of evolving media and technology platforms, these issues are become more and more important to understand and practice. This article focuses on the basics of copyright law with a focus on securing music rights. Follow-up articles this season will include discussions on Fair Use, Technology-Specific Copyright Issues and Archiving for Dance. Click here for a helpful document on Music Rights Clearance.
By Michelle N. Burkhart
The creator of a dance work does not always own the copyright. This often comes as a surprise to the dance artist who has created the dance work or piece. In some cases other persons or entities own the copyright. There are also rules governing copyright ownership when two or more people create the work. In dance this can come back to bite a choreographer who innocently lists his or her dancers as co-collaborators of a piece with the intention to give them “credit” but may in fact be signing away rights to the work by doing this. Finally, copyright owners can assign rights of the copyright to others, particularly for the purpose of marketing the protected work.
What does a copyright protect?
The Copyright Act of 1976 grants a number of exclusive rights to copyright owners, including:
- Reproduction right—the right to make copies of a protected work
- Distribution right—the right to sell or otherwise distribute copies to the public
- Right to create adaptations—the right to prepare new works based on the protected work (called derivative works), and
- Performance and display rights—the rights to perform a protected work (such as a stage play) or to display a work in public.
This bundle of rights allows a copyright owner to be flexible when deciding how to realize commercial gain from the underlying work; the owner may sell or license any of these rights.
Transfer of Rights
When a copyright owner wishes to commercially exploit the work covered by the copyright, the owner typically transfers one or more of these rights to the person or entity who will be responsible for getting the work to market, such as an agent, publicist, or presenter.
How to transfer rights?
- Assignment or license. An assignment is a transfer of ownership interest in the copyright; a license is a grant of only some of the rights comprising copyright.
- Mortgage or security. A copyright can be mortgaged or used as security for an obligation.
- Transfer upon death. If an owner of copyright dies with a valid will, the copyright will be transferred to a designated beneficiary. If an owner of copyright dies without a will, transfer of ownership will occur according to the rules of intestate succession.
- Involuntary transfer. Under certain circumstances (for example, bankruptcy, mortgage foreclosure, divorce), a court can order the transfer of copyright.
When transferring copyright, it is common for a copyright owner to place some limitations on the rights being transferred. For example, in dance the owner may limit the transfer to a specific season, or allow the right to be exercised only in a specific part of the country or world, or require that the right be exercised only on stage or in film. When only some of the rights associated with the copyright are transferred, it is known as a “license.” We see this with licensing of music rights for dance (more on this below). Transfers of copyright ownership are unique in one respect. Authors/choreogrpahers or their heirs have the right to terminate any transfer of copyright ownership 35 to 40 years after it is made.
In dance, the right in the choreographic work becomes an issue where the dance artist/choreographer is not clear on how to protect the work and rights in employment situations.
There are many exceptions to the general rule that the creator of a work owns the copyright to the work. The first is where the work is employer-owned work. In this instance the employer requests the employee to create the work in the course of his or her employment. How this plays out in dance is when a dance artist/choreographer is hired by a company/entity to create a piece as part of an employment agreement. This often occurs in a commercial context where a theme park, cruise ship, or community theater hires someone to come in and set a work for a production. Since the dancemaker is an “employee” of that entity, and creating that work while under the employ of that entity, the entity generally owns the work unless a contractual agreement has been negotiated between the parties prior to the engagement.
Work made for hire
A similar situation arises where the dance artist/choreographer is an independent contractor. In this instance the dance artist/choreographer is creating work that would constitute a “work for hire,” again here, because the artist is an independent contractor, it does not automatically create ownership of the work by the artist. The company again would own the copyright, unless an explicit contractual agreement between the parties stipulates the artist’s right to retain the rights to the work.
In the well-known Martha Graham case, ownership and work-made-for-hire policies were not established between Graham and the dance center and school she founded. Therefore, after her death, a dispute arose between her heir and the dance center and school for the rights to more than 70 great dance works. The key to ownership came down to whether Graham owned the dances at her death. After a six-day federal trial in 2002, the court applied the work-made-for-hire copyright law and determined that 45 pieces were owned by the center and school, five belonged to those who had commissioned them, one belonged to the heir, 10 were in the public domain, and no one could prove ownership of nine works.
In order to protect your work in a similar work-for-hire situation, the dance artist should always read carefully any agreement he or she is signing when entering into an agreement. Below is a sample work-made-for-hire policy that can be slipped into an engagement contract. If the artist is not reading that agreement carefully, he or she may overlook it and sign away rights.
Sample Work-for-Hire Policy. In the event that an employee's job responsibilities require the creation of intellectual property, unless otherwise agreed to in writing between such employee and the organization, any intellectual property created by an employee in performance of their respective job duties shall be owned by the organization as a work made for hire under the Copyright Act of 1976. As such, the organization retains all rights to the use, duplication, distributions, and sale of all such materials.
In the absence of an agreement, the courts will generally favor the entity/company looking at issues like was the work created in a space owned operated by the entity? Were the materials (sound systems, studio space, theater space) used in preparation of the work provided by the employer? Did the artist report to or was he or she supervised by the company in any way?
Joint Ownership in Works
When two or more artists prepare a work with the intent to combine their contributions into inseparable or interdependent parts, the work is considered joint work and the artists are considered joint copyright owners. The U.S. Copyright Office considers joint copyright owners to have an equal right to register and enforce the copyright. Unless the joint owners make a written agreement to the contrary, each copyright owner has the right to commercially exploit the copyright, provided that the other copyright owners get an equal share of the proceeds. Where does this become a problem in dance? Frequently, we see situations, especially with small- to mid-sized companies, where the choreographer is working in the studio with dancers and a great deal of collaboration happens, especially in the instance where the choreographer and dancers are friends or close colleagues. When the time comes for performance many choreographers want to “give credit” as a way to thank or recognized their dancers, not realizing they are in effect potentially signing away partial rights to the work they have created.
Working with a dance company recently, the choreographer of the company shared with me how she frequently listed her dancers as co-collaborators in the programs and that she valued their contributions and felt it was the fair and right thing to give them recognition. Imagine her surprise when she and one of her dancers had a falling out and he took a considerable portion of her work and reset it with a commercial dance artist. That work was televised nationwide as his work. The original choreographer discovered after speaking with several legal experts that her ability to bring an infringement claim would hinge on the publication of her dancer as a co-collaborator in that program. Just this simple act may have been enough to surrender her rights in the work or preclude her ability to file a successful infringement claim.
Music Clearance Rights in Dance
All copyrighted popular music resides in the catalogs of the two principal “performing rights organizations”—ASCAP and BMI—who protect their respective composer and lyricist members' rights by monitoring public performances and broadcasts of their music. ASCAP and BMI collect licensing fees from all such users and then compensate their members based on formulas that attempt to determine the relative popularity of the song, whether it’s “Put a Ring on It” or “Happy Birthday” (yes, that one is still protected by copyright).
It is important to bear in mind that ASCAP and BMI only license “small” or “nondramatic” rights to the songs in their catalogs. Songwriters who create musical plays, operas, or ballet scores deal directly with those who want to perform their works “dramatically” and seek grand rights. (The line between grand and small rights is a notoriously ambiguous one, with very little legal guidance. In borderline cases, obtaining an ASCAP/BMI license will at least be evidence of your good faith.) No unlicensed music user can escape the long arms of these organizations, which employ a small army of detectives to root out unauthorized musical use in venues ranging from funeral homes to dance studio performances (yes, believe it, they do attend dance performances, especially in popular venues!).
While the line between dramatic and non-dramatic is not clear and depends on the facts, a dramatic performance usually involves using the work to tell a story or as part of a story or plot. Dramatic performances, among others, include:
- Performance of an entire “dramatico-musical work.” For example a performance of the musical play Lion King would be a dramatic performance.
- Performance of one or more musical compositions from a “dramatico-musical work” accompanied by dialogue, pantomime, dance, stage action, or visual representation of the work from which the music is taken. For example, a performance of “Circle of Life” from Lion King with costumes, sets or props, or dialogue from the show would be a dramatic performance.
- Performance of one or more musical compositions as part of a story or plot, whether accompanied or unaccompanied by dialogue, pantomime, dance, stage action, or visual representation. For example, incorporating a performance of “Circle of Life” into a story or plot would be a dramatic performance of the song.
- Performance of a concert version of a “dramatico-musical work.” For example, a performance of all the songs in Lion King even without costumes or sets would be a dramatic performance.
The term “dramatico-musical work” includes, but is not limited to, a musical comedy, opera, play with music, revue or ballet/dance. Dramatic and grand rights are licensed by the composer or the publisher of the work.
Challenge for Dancers Securing Rights: “You’re from what dance company?”
The biggest challenge seems to be getting the publishers to return calls or emails about securing rights. Many dance artists say they try to do the right thing but because their performing venues and organizations are so small, their efforts to secure the rights go without response or an acknowledgement. The best recommendation is to submit your request early and professionally to the publisher to get the best chance of a timely response. Publishers are not interested in your last-minute needs: a “But I need these rights by my performance happening next week” plea will not help your cause. They will, however, respect a request months in advance, professionally submitted with all the information required to issue the rights. There are also now music rights clearance organizations that can do the work for you if you simply don’t have the time or inclination to do this groundwork on your own. Below is a link to a sample rights request letter that can be used for an email rights request to publishers plus a short list of music clearance providers who can assist with securing your rights for a fee.
Resources for Music Rights Clearance for Fee
Copyright Clearance Center: http://www.copyright.com/
BZ Rights and Permissions Inc.: http://www.bzrights.com/
The Music Bridge: http://www.themusicbridge.com/
EMG Music Rights Clearance: http://www.clearance.com/
Michelle N. Burkhart has a 20-year successful history in the arts/entertainment field as a dancer, administrator, consultant, and board member. Most recently Michelle has been working with Association of Media and Entertainment Counsel (AMEC) in Los Angeles. She has worked as an executive director for multiple arts organizations and has lectured for New York University. She served as a panelist for New York City Department of Cultural Affairs and worked with Columbia University and Cornell University in an advisory capacity. She recently authored the article “In a Post-Graham Word; Choreographing Dance Rights in the World of Media, Technology and Social Media” for the Pace University Sports and Entertainment Law Forum. Michelle holds a B.S. in Organizational Behavior from University of San Francisco and a J.D. with specialization in intellectual property law from Golden Gate University where she received the Witkin Award for Entertainment Law in 2004. She serves on the board of directors for Dance Camera West.
Up next: Fair Use
Common questions that will be addressed next in this series include:
• So if I only use a portion or a few minutes of the music, like on YouTube, I’m safe right?
• If I am using it for educational purposes for my school/university recital or performance I don’t need to get the rights, right?
• We are doing a community performance to raise money for a good cause, no rights needed, right?
• If I acknowledge the owner of the music, then I’m off the hook right?
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