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Legal Eagle

Copyright

Q: Do choreographers hold copyright?

Does a choreographer who creates a dance routine, recording poses and lines in written form, enjoy copyright? If so, can I prevent a photographer taking pictures of me demonstrating these elements, if they have not sought my permission?

A: The short answer to both your questions is yes, with certain qualifications. Copyright subsists in an original dramatic work and it is expressly provided by statute that "dramatic work" includes a work of dance or mime. However, the two essential requirements are that the work must be "original" and must be recorded in some written or permanent form, such as notation or film. In the case of choreography, as with most other art forms, there can be few, if any, single movements which are wholly original but originality comes from the putting together and synchronisation of common place movements into an original composite whole and, in synchronising such movements, with the music or sound to which the choreography is related.

The second requirement is one of record. You ask if it is sufficient for a choreographer to record his work "in written form". In principle the answer is yes but the notation must be capable of being understood, not just by its creator but by other choreographers of reasonable competence. There are certain well-known, standard methods of notation, such as the Laban or Benesh methods. It is, however, no use just scribbling incomprehensible lines and marks and comments on sheets of paper which no one but the person making the notes can understand or be made to understand.

Another method of recording choreography is by filming it but consent may be needed to such filming from performers, producer and/or theatre proprietor. This is likely to be readily forthcoming without payment if expressly limited to filming for archival or copyright record purposes only.

As to whether or not you can prevent a photographer taking pictures of you demonstrating choreography which you have created, it depends on the circumstances and in particular whether the photographer is taking still or moving pictures.

A performer's rights are infringed by a person who without his consent makes, otherwise than for his private and domestic use, a film of the whole or any substantial part of a live performance of dance or mime. It is an infringement of the performer's rights and does not depend upon the dance or mime being an original work protected by copyright. Note, however, that the infringement only applies if the film is made "otherwise than for the private and domestic use" of the person making it.

If the photography comprises stills or a film for the private and domestic use of the photographer then it depends on whether the photographer was a trepasser on the premises concerned or whether he had been admitted to the premises on condition that no photographs were allowed without permission, in which case he can arguably be prevented from continuing with his photography and may be made to have to deliver up the negatives and all copies to you on the basis that the law will not allow him to profit from his own wrongdoing.

In any event it may well be regarded as an invasion of your privacy - a fast developing area of the law which is by no means crystal clear at the present time. On the other hand if, for example, you choose to demonstrate your choreography in the middle of a public park, you can hardly be heard to complain if some passing reporter or busybody decides to take some still photographs of you.

If your copyright is infringed or if your performer's rights are infringed within the principles set out above, your remedy lies in damages and/or a restraining order through the courts if you cannot obtain satisfaction by agreement.

If your demonstration or performance was filmed illegally as aforesaid anyone who in the course of business without your consent possesses or sells or deals with the film or a copy of it when he knows or has reason to believe that it is an illicit recording will also be infringing your performer's rights.

I would emphasise that your rights as owner of a copyright work of dance or mime are entirely separate and distinct from your rights as a performer. Both may be infringed or one may be infringed without the other. They need to be considered separately, have separate legal consequences and attract separate legal remedies.

First published May 2003