Copyright » Special cases in dance and theatre

Special cases in dance and theatre

Protection of performing artists (§ 73 ff. UrhG)

Performing artists have their own absolute right to the performances in which they are involved. Performing artists in the performing arts in particular include actors/actresses, dancers, musicians, and theater directors. More than likely not included in the circle of performing artists are technical directors, artistic directors, makeup artists, ballet directors, and lighting technicians.
Performing artists are entitled to author's moral rights and exploitation rights. According to these, a performing artist has the exclusive right to record his/her performances on video or audio media and to make the performance publicly accessible or broadcast it. If several performers are involved in a production, for example, the dancers of a dance company, the exploitation right may only be exercised jointly.

Example:
A dance house (organizer) records a production created and performed in Germany and wants to distribute it on DVD. What must be regulated by the contract entered into with the international artists that are involved in the production as performers? Do collecting societies play a role?

A contract must be concluded with the international artists in which the organizer is granted the right to record the performance and then distribute it on DVD. It must also be determined where (in what countries) the distribution will take place and whether the recording will only be distributed on DVD or possibly also via the Internet, for example, by means of video-on-demand. The same is also true for the reverse case that a dance company wishes to record its performance on DVD at a particular venue. A contract must be concluded with the organizer, because – just as the performing artists – according to § 81 UrhG, the organizer has an ancillary copyright to the event organized by him/her.

Sources and materials for further study:
Wandtke, Artur-Axel (Ed.) - Urheberrecht, 3rd Edition 2012.
Wandtke, Artur-Axel/Bullinger, Winfried - Kommentar zum Urheberrecht, 3rd Edition 2009.

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Protection of material works vs. production art

Example:
A dramatic play of a still living author is performed under his/her name and the original title in an extremely shortened version that is contrary to the intended message. What rights does the author have? What interpretative liberties may the director claim?

The abridging of a play is not permitted if the author has not granted the adaptation right. Likewise, the right to public communication in the form of the stage right (pursuant to § 15 Abs. 2 Nr. 1 in conjunction with 19 UrhG) is also affected. Furthermore, distortion took place because the intended message of the author was not preserved.  

What freedoms does the director have then to express his/her art and grant interpretive liberties to the actors/actresses? This tension between protection of the work and production art is a difficult to define gray area that often pushes the boundaries of copyright law. It is therefore difficult to make universally valid statements. It is true, at least, that one always needs an adaptation license if one considerably shortens the original. At what point is the interpretation of an existing work an action relevant to copyright that goes beyond the performance right pursuant to § 15 Abs. 2 Nr. 1 in conjunction with 19 UrhG? A less than satisfactory but probably true statement in this case is that the provisions of the Copyright Act do not sufficiently take into account the special situation in case of productions of stage works by reproducing artists. There is no legally defined freedom of interpretation of the director, but the fact is that hardly any production manages to be done without direct changes to the text, such as language smoothing, small cuts, or changes to the storyline. An adaptation and thus an action requiring consent occurs (at least in case of stage works) when essential features of the work are changed through the nature of the performance without the consent of the author. The opinion of the author determines when these essential features are affected, at least when the form desired by the director changes the essential meaning of the work. 

These are always individual decisions – but basically, the Copyright Act defines relatively strict limits to the interpretive freedom of the director and the actors/actresses, which can only be countered by a very wide-ranging, well-described transfer of the adaptation right. What is more is that the author’s moral rights may be affected in case of significant changes relevant to the right to prohibit distortion according to § 14 UrhG.

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Choreographer's rights

THE VALUE OF DANCE: NOTES ON COPYRIGHT

Authors: Madeline Ritter, jurist and director of Tanzfonds Erbe, Berlin, and the lawyer Prof. Dr. Rupert Vogel, Karlsruhe 

Dance might not have had a place in the current discussion about copyright if the US popstar Beyoncé Knowles hadn’t borrowed extensively from the Belgian choreographer Anne Teresa de Keersmaeker’s works in the music video for her song “Countdown” in October 2011. De Keersmaeker filmed her works. This video adaptation was freely available on the internet, where Beyoncé Knowles discovered it and then copied parts of the choreographies and aesthetics. As an avant-garde, contemporary dance constantly invents new forms of expression and thus bridges the borders of the established. This essay looks into the unique character of dance and is a plea for a strengthening of dance artists’ rights.

Good reasons for video documentation

The reasons for choreographers to publish their filmed works on the internet – and thus run the risk of plagiarism – are many. One is an increase in publicity; exchange with the like-minded is another. For dance, especially contemporary dance, audio/ visual documentation of one’s own works is important for other reasons as well: for this form of art, there are hardly any written documents or unified recording methods (Rudolf von Laban’s famous dance script from the 1920s was not able to establish itself for general use). This is why dance is primarily documented and passed down with audio/visual means.

German copyright law offers copyright protection even without physical determination (see Schulze, in: Dreier/Schulze, Urheberrecht, 3. Aufl. 2008, § 2 Rn. 145; on the early 20th century demand of a „written form“ as a prerequisite for protection for dance art see: Wandtke, in: Jacobs/Papier/Schuster, FS für Peter Raue, Köln, 2006, p. 745 ff.). In other legal systems, a fixation is currently still a prerequisite for protection (see for French law art. L. 112-2 al. 4 CPI.). In addition, an important economic reason is also that choreographers can become members of the VG Bild-Kunst as long as they create (physically fixed) film or TV works (§ 2 I of the VG Bild-Kunst statutes of 2005; Wandtke, Das choreografische Werk und die VG Bild-Kunst, in: Schierholz/Melichar, FS G. Pfennig, München, 2012, 255, 266).

Dance and valorisation: no pas de deux  

However, choreographers are often unable to make their works available on the internet for financial reasons. The copyrights and related rights of all the other participants in a dance piece are “in the way”. Many different people are involved in a dance performance and in its documentation; their rights could be affected – in addition to the choreographer, there are composers, photographers, stage designers and finally the dancers whose rights as artistic interpreters (§§ 73 ff. UrhG) are protected by the GVL. It is even possible that, if the choreographer gives them many freedoms, the dancers are even co-authors (on possible co-authorship of jazz musicians in compositions see LG München I, ZUM 1993, 432; on dance, Obergfell, Tanz als Gegenwartskunstform im 21. Jahrhundert, ZUM 2005, 621, 625; on the simple assistance of participants to recreate an image see BGH, GRUR 1985, 529 – „Happening“). This not only makes it difficult to attain all agreements; it is also expensive.

The fact that dance artists can themselves hardly profit from copyright law leaves a bitter aftertaste – in Germany there is no collecting society to administrate choreographers’ copyrights, and the payment of choreographic rights is seen as a privilege that only very famous artists can even demand. An additional reason may also be that dance and organised interest group lobbying do not fit well together (Wandtke complains about the lack of commitment in: Das choreografische Werk und die VG Bild-Kunst, a.a.O., p. 255). A hesitancy to take legal steps also seems to be prevalent when a colleague uses another’s choreographies. In any case, in the national and international context, plagiarism cases between choreographers is extremely rare (see in Germany OLG München, UFITA 74 (1974), 320 – „Brasiliana“; LG Essen, UFITA 18 (1954), 243 – „Der grüne Tisch“; in France CA Paris 10.05.2012, no. 09/04390). Even the use of choreographic elements in Beyoncé Knowles music video seems not to have had any legal consequences (probably to no little degree due to the legal insecurity about how protection of individual excerpts from dance pieces is to be determined, see for happenings: Leistner, Von Joseph Beuys, Marcel Duchamp und der dokumentarischen Fotografie von Kunstaktionen, ZUM 2011, 468).

Not only the few cases (OLG Köln, GRUR 2000, 43 – „Klammerpose“; LG München I, GRUR 1979, 852 – „Godspell“), but also the limited amount of published material (in addition to the articles cited above by Obergfell und Wandtke s. Murza, Urheberrecht von Choreografen, Diss. Berlin, 2010; Schlatter-Krüger, Zur Urheberrechtsfähigkeit choreographischer Werke in der Bundesrepublik Deutschland und der Schweiz, GRUR Int. 1985, 299 and Aslne, La choréographie et le droit d’auteur en France, RIDA1994, no. 162, 3) is in agreement that the rights of numerous participants must be acknowledged in choreographic works. 

This legal situation is responsible for the relative dearth of dance works in the collective memory of the worldwide web – and the existing works are often clips and bad pirated copies. The situation of dance in real life is completely different. Not only since Sir Simon Rattle and the Berlin Philharmonic Orchestra transformed disinterested adolescents into enthusiastic dancers in “Rhythm Is It” has dance art given more and more people an inspirational experience. This contradiction proves the internet pioneer Jaron Lanier’s point who, after twenty years in the digital world, came to the conclusion in his manifesto “You Are Not a Gadget” that “only experience is real, information alone isn’t” (F.A.Z. vom 16.01.2010).

 

Living dance heritage – the Pina Bausch example

When an art form such as dance has increasing audience and user numbers in real life, then does it really matter if dance on the internet has a niche existence in its diversity and history, to no small degree due to the limitations of copyright law? Yes, it does matter. Since dance is only rarely commercially viable and profitable, it relies on public funding. And when cultural subventions are granted, then an educational mandate is part of the obligation. The public has the right to have a maximum level of access to the works that their taxes supported. It receives this access far too rarely. Also due to copyright law, it is difficult to experience historic works of contemporary dance – whether on stage or the internet. Dance history is thus often equated with ballet classics such as “Swan Lake” or “The Nutcracker”; the diversity of German dance heritage is then lost. This is why the German Federal Cultural Foundation has started numerous initiatives in order to make 20th century dance heritage accessible to the public. It provoked the development of the Digital Atlas Tanz, a visual database that will include extensive archive material on contemporary dance. It also made 2.5 million Euro available for “Tanzfonds Erbe”; this fund supports artists and projects that deal with 20th century dance.

Pina Baush, who passed away in 2009, is known to have had an exemplary approach to her own dance heritage. Recently, her company put London in a dance frenzy by showing ten of her masterpieces. Pina Bausch knew how important the audio/visual documentation of her life’s work was; she had her own work filmed in great detail. But if the Pina Bausch Foundation were to decide to place the documentation of her works on the internet, then it would have a huge problem with copyright law, especially because the choreographer used popular music in her pieces in a unique way. The GEMA and other collecting societies do not perceive it to be a Gesamtkunstwerk, but rather a great number of taxable music pieces – and this would make the publishing of the works simply unaffordable. Thus Pina Bausch’s works can only be experienced on stage – as long as the company continues to exist that has embodied the works.

 

Free access and fair use

By the way, Pina Bausch is often copied. Or cited? The borders are unclear – as in other art forms. But dance has long since arrived in the 21st century: postmodern practices such as citation, sampling or recycling – appropriation art – are as omnipresent in dance as in other art categories. Principles such as open access and open source are a common part of artist collectives’ approaches (Kappenberg, The Logic of the Copy, from Appropriation to Choreography, The Internat. Journal of Screendance, vol. 1, 2010, 27).

But copyright law, which was always fragmentary for dance, hasn’t changed. The objective of a copyright law reform for dance must be to find a practical balance of the interests of choreographers, composers, dancers and the public while considering new technological possibilities. To find suggestions for solutions, thinking outside the national box is advisable. The American dance world shows that a pragmatic balancing of interests is possible. The Dance Heritage Coalition, an association of the most important historic dance collections in North America, developed a guide through the “Copyright Jungle”. It translates the Fair Use Doctrine of American copyright law into the day-to-day work of collecting and presenting. At the core of Fair Use stands the question, whether non-commercial use of copyright-protected material has a “transformative quality” in the fields of education and culture. Put simply, does a new utilisation create a new context of meaning? If this is the case, in addition to considerations of the proportionality of use without financial compensation, then the internet portals are legally opened for dance. The consideration is that losing knowledge, especially in the case of such an ephemeral art form as dance, is a far greater risk than the effects resulting from a limitation of protection for intellectual property.

 

The battle for recognition: where is the German SACD?

A view towards our neighbour France reveals how the rights of dance artists could be dealt with. The French are the most enthusiastic dance lovers in Europe. They have a CND-Centre National de la Danse in Paris, a well-equipped national institute of dance, a revolutionary Musée de la Danse in Rennes, in which there are neither dusty relicts nor museum guards and – surprise, surprise – they have a collecting society for dance, the SACD (Société des Auteurs et Compositeurs Dramatiques) that demonstrates how distribution can be fair for artists and transparent as well. Needless to say, it is very popular among dance artists.

In Germany, you can search the long list of experts who have placed their collected knowledge in the various baskets of copyright law and never find a choreographer. Dance as an art form does not have the same kind of strong lobby in Germany that music or the visual arts have. And although dance fights for equal recognition in the circle of art forms, only 0.03% of the federal cultural expenditures go to dance; in the municipalities and federal states it isn’t much more: 1% and 3% („Öffentliche Tanzausgaben in Deutschland“ in Tanzplan Deutschland – Eine Bilanz p.88 ff., 2011). It thus demonstrates its unique position in the debates about copyright. In interviews on the dispute between Beyoncé and De Keersmaeker, the question was asked: “How can a dance movement – for example, combing through your hair with your hand – be protected by copyright law?” A movement from daily life couldn’t possibly be art that is worthy of protection, so the assumption. The closer to life, the lower the value of art? The French speak of the “poids de la danse”, the weight of dance. Of course, dance naturally has to do with gravity. Where this force has no effect in the internet, dance is no longer grounded.

 

This article first appeared in and is courtesy of GRUR Prax. Zeitschrift der Deutschen Vereinigung für gewerblichen Rechtsschutz und Urheberrecht. Edition 24/2012 from 14. December 2012. By kind permission of the publishers. 

 

Translated by Christopher Langer

 

 

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