The Value of Documenting Dance
by Francis Yeoh
The regular lament expressed by commentators that the art form of dance has an ephemeral existence raises many issues that require consideration. This ontological instability of dance may very well be the reason why the art form has been marginalised in the field of aesthetics and copyright law. This phenomenon is reflected in the paucity of case law on dance copyright. The framers of copyright law, in most countries, have made fixation a prerequisite for copyright protection. The US Copyright Act 1976 requires choreographic works to be “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” UK copyright law stipulates that dance must be in “writing or otherwise” (Copyright, Designs and Patents Act 1988). Both expressions are fluid to enable the courts, in their interpretation, to accommodate future technological developments for the recording of dance. Of course, the documentation of dance has a much wider purpose and function, particularly in its valuable contribution to preservation and scholarship. Canadian philosopher, Francis Sparshott, posits:
In these few sentences, Sparshott has encapsulated the problems confronting the establishing of the identity of dance due to its non-verbal representation, its multiple media form and the scarcity of reliable records. These problems demand examination, discussion and remedial action.
The history of copyright is wrapped around the concept of printing and copying, and within this conceptual framework dance is an anomaly due to its oral tradition; its historical lack of documentation (fixation); its ephemeral nature; its ontological instability. The authoritative UK book on copyright law, Copinger and Skone James on Copyright, provides the rationale for the ontological prerequisites expressed in copyright law:
Copyright law encourages authors/choreographers to create works by protecting their copyright and providing economic benefits for their efforts. These privileges are enjoyed for a period extending from fixation to 70 years after the death of the author/choreographer. The law bestows on the choreographers a bundle of rights that empowers them to prevent reproduction (copying), publication, performance, broadcasting and adaptation/translation of their works without permission and remuneration. It is important to note that dance was first recognised in the UK by the Copyright Act of 1911 and it has been and continues to be included within the definition of “dramatic works.” However this is not the situation in the US as the 1976 Copyright Act listed choreographic works as a separate category. In the past, for example, choreographers Agnes de Mille was not paid royalties for her choreography for the musical Oklahoma! (1943). This musical generated a fortune for Richard Rodgers and Oscar Hammerstein, the composer and lyricist, but Carol Easton claims that Agnes de Mille was “paid off handsomely in prestige” but not in financial terms (1996, p. 215). Leonide Massine fought for ownership and control of his ballets in “a recurrent nightmare” (Garcia-Marquez, 1996, p. 291). His legal action against Colonel Wassily de Basil in 1938 for rights to his ballets failed but a few years later, the arbitrator, James Gifford, decided in Massine’s favour in the dispute with Ballet Russe de Monte Carlo (ibid). As de Mille described:
Arcomano believes that the 1976 Copyright Act had corrected an anomaly that was “long overdue … after more than twenty years of studies of copyright problems, reports by the Register of Copyright, meetings, extensive legislative hearings and deliberations on revisions bills” (1980a, p. 58). Julie Van Camp suggests
that Congress intends to create a broader class of protection. Clearly, Congress intended that the Copyright Act provide categories eligible for protection with “sufficient flexibility to free the courts from rigid and outmoded concepts of the scope of particular categories.” (1994, p. 60, online)
The statutory requirement for fixation of dance acts as an incentive for choreographers to record their choreographic works. In order for any discourse to develop a balanced perspective on establishing identity of a choreographic work, account must be taken of the methodology adopted by choreographers in creating dance, as it is a collaborative process . A choreographer creates on dancers in a studio environment, and her ideas are ‘moulded’ and embodied in the dancers, unlike a composer or dramatist who can be solitary in the act of creation who fixes her ideas directly onto paper. A choreographer relies on others to record the work, such as the notator, videographer or filmmaker. In this regard, Aaron Meskin thinks that ‘dance ontology is complex.’ She posits:
Interpretation is inevitable in the fixation by notator or filmmaker. Therefore, providing such evidence in litigation becomes an arduous task. Julie Van Camp highlights the difficulty of proving infringement. She believes that ‘[c]omparing two dances could be like comparing poems in two unknown foreign languages for persons who did not have some familiarity with the art form of dance’ (1994, p. 13). There are other problems, such as the court having to contend with two recordings with different casts, and more significantly, in different versions of the dance work. Further complications occur when one record may be a video/film and the other a notation score. As dance notation is not universally understood, the services of the expert will be required to ‘read’ the score and compare it to the video recording. The court may also consider both recordings to be lacking in certainty. Video recordings, particularly of a group of dancers, may be unclear as camera angles can cause some positions to be obscured. It is also an interpretation of the dance work by the performers. Notation scores, no matter how detailed, are nevertheless an interpretation and analysis of the choreography by the notator and its value is dependent not only on the notator’s access to the choreographic process but also the accuracy of the notated score. Finally, the court may decide that they need to see a live performance of both versions in order to deduce similarity or otherwise which will make litigation expensive and beyond the means of a choreographer who is already struggling to establish her status. These can be reasons why choreographers are reluctant to litigate.
Advances in technology have generated more methods for documenting dance. It is increasingly being recorded in video and film that can be speedily disseminated in the global information highway. Dance now reaches a far wider audience and is no longer confined to the theatre. The prospect for fixations to be more accessible and readily perceived is promising due to research in computer software. Developments in the field of motion capture may result in another source for fixation of dance (Furniss, 2000, online). The use of Benesh and Labanotation for recording dance becomes a less laborious recording tool due to the use of computer software, and translating the digitalised records for movement animation, producing another source for documentation of dance that is more accessible to the layperson. Currently, fixations that are deemed to be acceptable resources for identifying dance works are film, video, notation scores, an oral account that is recorded and written descriptions (Cyril Beaumont’s book on The Ballet called Swan Lake  and Mikhail Fokine’s written description and photographic account of The Dying Swan for example). The need for fixation of choreography by a filmmaker becomes a problem for a struggling choreographer as it is an expensive process. However, recording with a hand-held camera of dress rehearsal may be considered as sufficient evidence of the work. The important argument is that there can be a material difference between what is acceptable for registration purposes and that for proving an infringement in court.
The court may adopt different criteria of proof for different types of cases. That for establishing substantial similarity will be different to a claim of derogatory treatment as the question of integrity of the dance work will revolve around the concept of complete identity and in this instance aesthetic considerations will play an important role. In proving ‘substantial similarity’ of the offending performance to the protected work, it is not the quantity but the quality of the infringing copy that is important. In the case of Horgan v. MacMillan Inc (1986) , Barbara Horgan, as executrix of the estate of George Balanchine, brought an action against MacMillan publishers for infringement of the copyright of Balanchine’s Nutcracker. She applied for an injunction to stop the publication of a book that MacMillan was about to publish containing photographs of Balanchine’s Nutcracker. This case provides an insight into the scope in interpretation of terms that can be adopted by the court. Van Camps states: ”With still photographs, ‘a single moment in a dance sequence may communicate a great deal’…. With these observations, the court has accepted a very narrow notion of what would count as ‘qualitatively significant’” (1994, 12, online). The appeal court, on a writ of certiorari, sent the case back to the lower courts for reconsideration of the matter as it held that it has employed the wrong test for infringement. However, it was settled out of court before the retrial. This low threshold for proving substantial similarity will not hold for litigation based on derogatory treatment of a dance work as it would necessarily revolve on the concept of total identity.
Choreographers appreciate the important contribution of the notator/répétiteur in reproducing their works. Antony Tudor states in his will:
The practice of annotating scores so that a fuller record of a dance work becomes available not only for company archives but for research, scholarship, and testimony in court (Braban, Guest; Topaz; Whitley in Jordan, 2000).
Usually these records of the choreographic work are not published and therefore are not readily available to the public. However, the Benesh Institute of Choreology (London) and the Dance Notation Bureau (New York) register choreographic scores that may be borrowed with permission for different categories of use. The Library of Congress in the US has been appointed as a registry of copyright works. Comprehensive bibliography of Labanotation scores are kept by various organisations in Europe and the US. Registration is not mandatory in UK but in US law, registration is a condition precedent for any claim of statutory damages although it is not a condition for copyright to exist. Notators who have served the choreographer over a long period develop an acute understanding of the choreographer’s oeuvre and can reconstruct the works from their records and memory. Their notated score of the dance work is more direct and immediate due to their intimate relationship to the choreographic process. Michele Braban relates her experience in using the notation score in re-staging Cruel Garden (1977) by Christopher Bruce and Lindsay Kemp for the Berlin Ballet:
Dancers are able to benefit from the notator’s meticulous record regarding counts, the sequence of steps, the inter-relationships between partners and ensemble, rhythm and dynamics. The notator will generally annotate the music score as an addition to her records and annotate the music score with information that identifies points where solos, pas de deux or groups commence and end their variations, becoming an important link between the choreographer, dancer and musician. The various research projects that investigate the use computer science and notation to produce animations of the movements will generate more accessible records and more importantly, are easily perceived by the layperson. J. Lansdown’s paper on Computer Generated Choreography Revisited at the Proceedings of 4D Dynamics Conference (1995, 89-99, online) and R J Neagle’s Article, A survey on application for editing and animating dance notations. Neagle discusses the work of dance notation editors translating notation, such as Benesh Notation, into animated images. These projects will provide alternative methods of recording and ‘reading’ dance that will enable to choreographers to ‘write’ their choreography, i.e. a direct evidence of the choreographic expression.
The fixing of dance works in a tangible form must be the responsibility shouldered not only by the choreographer but also by the dance community, the State and international organisations. The value of documenting of dance works in its various manifestations is evident not only for the purposes of copyright, but for preservation and scholarship. Developments in recording process that will make the art form of dance more accessible will only enhance its status. The advent of easy, speedy, cheap and ever increasing dissemination of dance within cyberspace and the global nature of the Internet make it imperative for choreographers to become more aware of exercising their rights under copyright law responsibly and attend to the requirements for the preservation and reproduction of their works.
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