After posting Foot contributor Paul Parish’s eloquent and provocative outcry on the YouTube crackdown on user Ketinoa’s large video collection, I received some illuminating information on copyright law from Marc Kirshner, of the newly formed Tendu TV.
Here it is, filtered through the law-ignorant mind of moi:
–In order to maintain their right to certain dances, organizations such as the Balanchine Trust have to enforce copyright protection. If they don’t complain to YouTube, for example, about the Kirov clips of Balanchine works that Ketinoa put up, they’re at risk of what’s known as copyright abandonment, which means that when a real risk comes along (such as did with the Martha Graham company under Ron Protas), they’ve relinquished their legal right to prosecute.
THIS JUST IN, from lawyer Elizabeth Russell, specializing in the arts and issues of copyright:
Regarding copyright enforcement, abandonment is a concept that applies in trademark law; but there is no statutory abandonment provision in copyright law. And there’s a reason for that: trademark law serves consumers. If a business chooses not to be diligent in policing its trademarks, it is in the consumers’ best interest to have the trademark become unenforceable. Copyright, on the other hand, is a constitutional balance intended to protect the rights of authors (including choreographers) for “limited times,” in order to encourage the creation of, essentially, cultural material. After the “limited time” is up, that material passes into the public domain. Copyright law thus protects authors, in order ultimately to benefit the public. So there are more protections in copyright law for authors, than there are in trademark law for business owners. And one of those protections for authors is: it’s hard to abandon your copyright by accident.
Well, there goes the Balanchine Trust’s big excuse!
–About 95 percent of dance companies have not copyrighted their works. It’s not particularly easy to do so, because you have to determine the “standard” form–called “fixation” in copyright law–which requires careful video documentation and possibly also notation. It’s easy enough to determine a book’s fixed form–the version published–but with dance, questions come up such as, as Kirshner put it, “Is the choreography the steps or the movement between the steps?” This made me laugh: isn’t the issue of what counts as a step and what a transition a philosophical question that each choreographer answers differently? And how do you convert such aesthetic values into legal criteria?
–As little as five seconds of video can count as copyright infringement. But “fair use” dictates that you may “quote” video the same way you would a passage from a book: in a discussion that contextualizes. You could, for example, embed several Giselle mad scenes within an online essay on how each of the ballerinas approached this pivotal moment. (For more on Fair Use in dance, particularly for collections staff, see the Dance Heritage Coalition’s careful, comprehensive 2009 document, “Statement of Best Practices in Fair Use of Dance-Related Materials: Recommendations for librarians, archivists, curators, and other collections staff.” Via Ballet Talk.)
I asked Paul for his thoughts on the addition. Here they are:
It may be time to lobby for a MAJOR change in copyright law. Many issues are changing their look — like the way Washington DC changes as you drive away from one of those circles, the buildings actually shifting places if you’re not operating from a grid. The way things are growing now–some things growing, others shrinking–fair use doesn’t have to mean “in a critical review,” for example.
Paul.
Yes, these legal points in no way answer the larger questions about what and who the copyrighting etc. serves: whether the laws as they stand defeat the very artform and artists they’re meant to protect (and I do think what serves the artform ultimately serves the artist.)
Here, again, is Paul’s original post.
And here is my followup, about the role of borrowing in artmaking and what Balanchine’s position on YouTube and the Trust’s tight control might have been.
And check out comments by Marc Kirshner et. al.
One quick elaboration (also a caveat – I’m not an attorney, so nothing I say should be considered legal advice):
The ambiguity as far as what is copyrightable (Is the choreography the steps or the movement between the steps?) comes from one of the few judicial opinions on the subject. While looking to dig up the specific case, I came across this fairly helpful link:
http://www.csulb.edu/~jvancamp/copyrigh.html
Definitely worth a read for those interested in the topic.
[Apollinaire responds]: Thanks, Marc, I’ll give it a read when I have a chance, though I think it’s worth noting that the article was written in the mid-’90s, before the explosion of YouTube and the like.
1,2…..cha cha cha……..hey that little extra hop is my copyrighted work….don’t hop or you’ll owe me a royalty.
Glad to have the clarification on the abandonment issue.
That being said, it would still be an unfair assumption, had my understanding been correct, that obligation was the Balanchine Trust’s big excuse, unless they have made some explicit statement to that fact. It is also an unfair assumption that the Balanchine Trust was the reason that Ketinoa’s channel came down. Given that Ketinoa had 1300 clips, most, if not all of which, they clearly had no permission to share, it is a safer assumption that they were recognized by YouTube for what they were… a pirate.
Take the Balanchine choreography out of the mix. What about the music rights? The dancers performances? The directors? Within each dance performance, there can be a dozen different types of rights holders. Is it appropriate that all of these rights holders should be stepped on? Behind every video clip on Ketinoa’s channel was series of contracts and negotiations that required a significant expenditure of financial and human resources. Making work available for new digital platforms often requires an additional series of contracts and negotiations. If you owned the music rights, how would you feel if work you licensed to a choreographer under specific conditions was pirated in this fashion? My guess is that you would feel reluctant to offer the same licensing consideration the second time around, and the last thing the field needs is a greater separation between music rights owners and choreographers.
Also, it should be acknowledged that the Balanchine Trust, as does every choreographer and creator of art, has the fundamental right to protect their creation, regardless of whether or not it “makes sense”. If the Balanchine Trust’s rights aren’t going to be respected, what kind of message does that send to the new generation of choreographic geniuses who are creating work and trying to survive in the field today?
[Apollinaire responds]
Marc,
Thanks for the questions. I do think they make clear the sort of morass copyright laws put severely underfunded artists in, if every time they put a video up, they have to consider everyone’s intellectual property rights, including the dancers: It would be like a writer having to consider the “rights” of the words.
In my experience, artists want to be paid for the live performance, for creating, but if everything has to be parceled out as you say, then the gateway to those live performances–which is often how YouTube functions–will be utterly lost, which defeats the choreographers.
As for the message it sends to the next set of choreographic geniuses: They probably care more to get their work out there so it can affect future generations than to watch over it like a hawk. The very way you pose the questions–on one hand “pirates,” on the other hand “owners”– is antithetical to artistic creation. (See my earlier post: http://www.artsjournal.com/foot/2009/10/what_would_balanchine_have_tho.html) But I can see why this way of putting it appeals to you, given you’re in the position of advocating that companies put their work on video so you can distribute it and help them (and you) earn some money.
I would be interested to hear from choreographers and companies: How do you feel about clips on YouTube? Good or bad? and what kind of clips?
Thanks for writing,
Apollinaire
I’m curious. Where did you get the info that “95% of companies don’t copyright their work”? Seems a very high number…
[Apollinaire responds]
Same place as I got the other info: from Marc Kirshner. It doesn’t seem high to me–not if you count “company” as any group assembled to produce a dance. I’ve never encountered the copyright sign south of 23rd street–at DTW, Danspace, PS 122, The Kitchen, etc. But maybe they’re simply not mentioning it…..
The 95% number is based on my conversations with many, many dance companies. I based that number on the percentage of choreographers who lack notated works (which is all but a small handful) and/or decent quality video from which a work can be reproduced. Of course, one good court case, and that 95% number can easily become 0%.
The full answer is much more nuanced, and is based in large part on the lack of case law and a gigantic gray area encompassing fixation (and the second half -“and from which the work can be perceived, reproduced or otherwise communicated, either directly or indirectly, or with the aid of a machine or device”) of choreographed works. I would refer you back to the link I mentioned in my initial response to this thread, particularly sections D and E. Although the article is 15 years old (as Apollinaire mentioned) there are only a handful of cases that have taken place since then, with minimal progress.
Basically, it’s a mess.
Just to add to the resources in this discussion… here is a VIDEO that goes into detail and answers questions regarding The Dance Heritage Coalition’s published statement “Best Practices in Fair Use of Dance-Related Materials” including it’s history and interpretation. Speakers: Professor of Law Peter Jaszi, Jacob’s Pillow Director of Preservation Norton Owen and American Dance Festival Archivist Dean Jeffrey. Moderated by Jacob’s Pillow Scholar-in-Residence Philip Szporer.
Produced by Jacob’s Pillow Dance available via FORA.tv.
http://fora.tv/2009/07/31/Fair_Is_Fair_Copyright_Act_and_the_Fair_Use_Doctrine
[apollinaire responds} Thanks so much! I’m sure this will prove useful to people.
I agree that the questions about what and who the copyrighting etc. serves is a complex issue without clear cut answers on either side, but the benefits of what serves the artform itself do not necessarily always trickle down to the specific artist who deserves those benefits.
Just my 2 cents. Nice post, by the way.
Jim