This article has been written by Ishu Yadav

 

Introduction

Choreography, the art of creating meaningful dance movements, is an integral part of Indian theater productions. It seamlessly blends rhythm, emotion, and storytelling, transforming performances into captivating expressions of art and culture. From the intricate steps and mesmerizing postures of classical dance forms like Bharatnatyam and Kathakali to the energetic and vibrant Bollywood numbers, choreography plays a crucial role in enthralling audiences and leaving a lasting impression. However, the issue of copyright protection for choreography in Indian theater productions has been a subject of debate and discussion for several years.

 

The significance of choreography in Indian theater extends beyond mere entertainment. It serves as a powerful medium for cultural expression, preserving and transmitting the rich heritage of India’s diverse dance traditions. Choreographers, the masterminds behind these captivating movements, meticulously craft and execute dance sequences that not only entertain but also convey profound emotions, narrate stories, and embody the essence of Indian culture.

 

Despite its undeniable importance, the issue of copyright protection for choreography in Indian theater productions remains ambiguous. Choreographers, like other artists, invest their creativity, skill, and hard work into their craft, yet their rights as copyright holders are often overlooked or inadequately protected. This lack of clarity has led to instances of unauthorized reproduction and appropriation of choreographic works, depriving choreographers of due recognition and compensation.

 

The debate surrounding choreography copyright in Indian theater stems from the complexities of defining and interpreting the concept of choreography within the framework of copyright law. Traditional dance forms, passed down through generations, may present challenges in establishing individual ownership and originality. Additionally, the distinction between mere dance movements and choreographic expressions adds another layer of complexity to the copyright assessment process.

 

To address these challenges and ensure fair treatment for choreographers, there is a growing need for clear and specific guidelines within copyright law that explicitly recognize and protect choreographic works. Such guidelines should address the nuances of traditional dance forms and establish a framework for assessing originality and authorship in choreography.

 

Historical Background

The term ‘choreography’ has Greek origins, derived from the words Choros [χορός, romanized: khorós], which generally meant ‘dance’. Over the 16th and 17th centuries, several artists across France and Italy began creating their own dance sequences for the purpose of performances at courts of rulers.  Development of the Ballet dance form particularly strengthened the concept of choreography, as it involved performing of a systematic construction of defined dance moves, to which the choreographers contributed greatly. Choreography was established as an important element of Ballet, in addition to other aspects such as actual dance and music. However, the importance of choreography as a type of intellectual property was not acknowledged significantly over time. More conventional forms of expression such as speech, stories, novels, and movies acquired the primary status under ‘copyrights’, while dance was considered casual, ancillary and sometimes immoral. Although the copyright laws in our country do acknowledge choreography, it is only in the recent few years that it is being considered as a distinct facet of expression in the practical sense.

 

For getting the choreographic work to be copyrightable we need to focus on certain principles in order to fulfil

1. Originality of the aerial acts must be fulfilled 
2. Dance moves are to be systematic in nature. 
3. It must be tangible in nature and must be notable as literary works. 

Some prominent dances such as ballet, Kathak and Bharatnatyam are based in such a standardized manner on predetermined rules and patterns, whereas various other forms of dance like Bhangra and freestyle do not follow a precise pattern. The copyright law safeguards a comprehensive and systematic combination of registration dance steps. Dance is an abstract kind of art that makes it harder to obtain intellectual property, unlike a chemical or mechanical process. One issue that choreographers, performers, artists, and dance groups are experiencing these days is a financial crisis and societal restrictions as a result of a lack of proper legislation on choreography protection. Dance is an expressive kind of art which makes it difficult to obtain intellectual property, as opposed to chemical formula or mechanical procedure. 

Elements of choreography under copyright act 1957 

1. 1. An individual or a group should have skills for the choreography. 
   2. Rhythm and dance movements should be properly coordinated with music and sound patterns. 
   3. The formation of the art/ theme should be expressive and novelty must be there. 

• It should be treated as literary works in nature

 

Status of Choreography in legal systems around the world

Copyright Protection for Choreography in India

Choreography as a «dramatic» work is only mentioned in The Indian Copyright Act. Section 2 (h) of the Indian Copyright Act of 1957 protects dramatic works The part covers any recitation, choreographic work, or amusement in a dumb show, the scenic arrangement, or acting, the form of which is set in writing or otherwise, but excludes a cinematograph film. We may understand that the clear reading from this clause requires a defined type of work to hold the copyright in choreography. The World Intellectual Property Organization (WIPO) defines examples of “fixation,” such as paper work, disk, canvas-painting or graphic art. If a choreographer wants to get a copyright, it must be reduced in a stable format such as a written format or videotaping but not in movies.

 

In choreography this part has a restricted scope for the phrases „or otherwise” and the exception of “cinematograph film.” Section 2(f) defines “cinematographic film” as a visual recording work, and includes a sound recording accompanying visual and “cinematography” as including any work created by any film analogue method, including video films. 

 

If the piece is choreographed and not part of the movie it meets the requirement to be a dramatic work. In accordance with Article 14(a) of the Copyright Act of 1957 India, the theatrical work is entitled to reproduce, copy, adapted. 

 

The author of a dramatic work shall be defined in Section 2(a)(i) as the first owner of a work of copyright in order to identify the ownership of a choreographic work and the author of Section 17(a) is defined in Section 2(a)(i). The owner of a choreographic piece is therefore the first owner, i.e. the creator of the work. 

 

For the choreographic work, section 2(h) and 2(f) are ambiguous, since a video capture is not the result of theatrical labour but rather the result is a cinematographic film. So the author of that work is not entitled to the author of the work if he makes a video of his/her dance, as defined in Section 2(xxa) of the act that specifies “visual recording.” This applies however to instances where the video producer and the choreographer are two individuals.

Copyright Protection for Choreography in American Legal System

In the American legal system, the primary statute governing copyrights is the Copyright Act 1976. Choreography is included under the category of ‘pantomimes and choreographic works’ under Section 102(a) (4) of the act. For registering a copyright, a choreographic work shall be original, and must also be fixated. In simple words, any dance sequence that is created using original thought and idea, and is reproduced in a fixed, tangible form can be registered under the US copyright law. The idea behind these thresholds is encapsulated in some judicial decisions. The US courts have established in certain cases that even photographs of dances can amount to fixation, given that at least some minimal amount of creativity and originality is present.

Copyright Protection for Choreography in United Kingdom Legal System

In the United Kingdom, the primary statute dealing with copyrights is the UK Copyright, Designs and Patents Act 1988. Section 3 of this act classifies dance as a ‘dramatic work’, and to register copyright over a choreographic work, the requirements are very similar to the US legal system. Fixation and originality are the two basic thresholds required, and the copyright belongs to the person who possesses the intellectual property over the dance sequences, most often the choreographer. 

 

Challenges in Enforcing Copyright for Choreography

Despite the legal provisions, enforcing copyright protection for choreography in India can be challenging. This is due to several factors, including:

• The ephemeral nature of performance: Choreography is typically performed live, making it difficult to capture and record in a way that is easily reproducible.
• The lack of a standardized notation system: Unlike music, there is no universally accepted notation system for choreography. This makes it difficult to document and protect choreographic works in a consistent and uniform manner.
• The subjective nature of choreography: Choreography is often considered a subjective art form, with different interpretations and variations possible. This can make it difficult to determine whether a particular performance constitutes an infringement of a copyrighted work.

 

Judicial Decisions 

• Foreign Decisions

Massine v. De. Basil (U.K.) (1937) is a dance ballet with multiple elements including music, drama, choreography, dance move notation, costumes and stage views. 

 

The courts reaffirmed in Horgan v. MacMillan Incorporation that under the earlier U.S. Copyright Act of 1909 choreography had no defined position, but only was it identified in accordance with the ‘dramatic work’ of the Copyright Law. The dance choreograph is only protected by this law if a tale, an expression, an emotion or a conceptual phrase or an ideal work is present. Unless it transmits a theme, with expression and passion or shows it in the form of any conceptual expression or idealism, dance choreography was protected by this regulation. In the earliest phases of creation of copyright law, the right of a Choreographer in his choreography was not identified.

 

In Stichel v. Mendes (France), the court ruled that choreography must represent movement that exemplifies a synthesis of human emotions and expression. The dance composer directs the choreography and oversees the staff who carry out their responsibilities for the duration of their term. As a result, the choreographer receives credit for the theatrical effort. 

 

According to Fuller v. Bemis (French law), a dance piece must convey the audience a story/plot. It must repeat, duplicate, or imitate the movement or words of any character or drama, emotion, and so on. The expression of an idea in whatever form will fall under the purview of Copyright. Dance may be a succession of graceful movements, lighting, shadows, characters, and emotions shown in a plot.

• Indian Jurisdictions

A very famous case Academy of General Education, Manipal and Anr. v. B. Manini Mallya is relevant to us, since under Section 2(h) of the Copyright Act of 1957 it deals with the protection of a new version of ballet dance as dramatic work. In this decision, the Supreme Court held that copyright for ‘dancing’ would not fall within the jurisdiction of the literary work but the purpose of defining ‘dramatic work.’ Briefly, Dr. Karanth had invented a new ‘Yakshagana’ form, i.e. a type of dancing ballet.The Respondent has sued Dr Karanth’s will, claiming that the Appellants have violated its copyright by doing the same dance and not getting their prior consent, on the grounds of alleging violations of copyright for that dance. The appellant being an institution for education, the Apex Court set forth the provisions of fair treatment in this case, and held that the order of injunction is not applied if the dance is carried out by a teacher or a pupil during education or if it is carried out strictly in front of a non-paying hearing by the appellant.

 

The Supreme Court ruled in Academy of General Education, Manipal and Ors. Vs. B. Malini Mallya that a ballet dance reproduced in a literary form qualified for dramatic work under the Copyright Act, 1957. As a result, in order to get copyright in choreography/dance work, the artist or choreographer must transform it into a written form that may be documented for the registration. 

 

In Bikram’s Yoga Coll. of India, L.P. v. Evolution Yoga, LLC, the topic of whether the systematic and sequential style of yoga is protected by the Copyright Act was challenged. The yoga sequence was ruled to be unprotected by the Copyright Act since it is a kind of systematic bodily activity.

 

Current Status and Future Directions

The issue of copyright protection for choreography in India is still evolving. The Copyright Act provides a legal framework for protection, but there are challenges in enforcing copyright for this type of work. Further development of case law and guidelines could help to clarify the scope of protection and make it easier for choreographers to assert their rights.

 

Recommendations

In order to enhance copyright protection for choreography in Indian theater productions, the following recommendations are proposed:

• Develop standardized notation systems for choreography: This would allow choreographic works to be documented and protected in a more consistent and uniform manner.
• Raise awareness about copyright protection for choreography: This could be done through educational campaigns and workshops for choreographers, dancers, and theater producers.
• Strengthen enforcement mechanisms: This could involve establishing specialized copyright tribunals or courts to deal with disputes involving choreography.

 

Conclusion

The law related to copyright protection of dance sequences remains in its infancy; nevertheless, due to the proliferation of platforms such as TikTok and games such as Fortnite, numerous lawsuits alleging copying of popular dance movements are coming to the fore. Many artists are becoming aware of their rights and are striving to defend them. Surprisingly, despite the fact that dancing is quite pacific in nature, its protection is very litigious. Copyright protection for dance sequences is also gaining momentum in the business. Existing research indicates that there is an increasing need for performers to seek copyright protection for artistic works; however, we now conclude that in this era of  Digitalization of artistic performances and cultural diversity, existing intellectual property laws do not provide adequate support to the choreography content. Remo D’ Souza, a well-known Indian choreographer and director, has previously announced that he would seek protection for one of his film’s choreography. As a result, dance is becoming more of a business professional than a once- worshiped form of art. However, the legal system should not be entirely entrusted with making dance and choreographic decisions. Because they are unable to perceive the sacredness of dance in the same way that a trained eye can. Choreography should be given a fair interpretation, and performers should have easier access to courts and the legal justice system to assert their copyright. Hopefully, such acts will have a domino effect, and many more dancers or choreographers would come out to seek legal protection for their renowned dances, resulting in a more established legal position not just in India but also worldwide.

References:

• R.G Anand v. M/S. Delux Films & Ors., (1978) 4 SCC 118; Donoghue v. Allied Newspapers, (1937) 3 Ch. D. 503.
• The Editors of Encyclopedia Britannica, Choreography, Britannica (July 20, 1998) https://www.britannica.com/art/choreography/additional-info#history.
• Massine v. de Basil, (1938) 82 Sol Jo 173.
• The Copyright Act, 1975, § 2(h), No. 14, Acts of Parliament, 1975 (India).
• The Copyright Act, 1975, § 14(a) (iii), No. 14, Acts of Parliament, 1975 (India).
• Academy Of General Edu., Manipal v. B.Malini Mallya, (2009) 4 SCC 256.
• Anupama Mohan v. State of Kerala, (2015) SCC OnLine Ker 39420.
• Horgan v, Macmillan, Inc., 789 F.2d 157 (1986) p.517.
• Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991).