Copyright in sport choreography: the new approach

Έτος:
2023
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Περίληψη

Choreography is a protectable form of intellectual property. It is a copyright infringement and a basis for a legal claim if someone without legal authorization publicly performs the work or reproduces the work. The copyright legal framework worldwide applies in all sport choreographies as these are performed for athletic dance, rhythmic gymnastics, artistic swimming, breaking, cheerleading, figure skating and gymnastics. Copyright law provides for creators’ property and moral rights, which are essential both for the choreography creators position as well as for the development of the sports mentioned above. The main protected element of an intellectual creation is the original form in which this is perceived by the human senses. Protecting intellectual property provides athletes, choreographers, and trainers the opportunity to license, merchandise and commercialise their work.

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Κείμενο

1. Introduction
Humanity without law would be a chaos while humanity without art would be a failure. Choreography is a protectable form of intellectual property. Like all other art forms, choreographic works in dance and their steps as well as all forms of sports that include choreographies, such as rhythmic gymnastics, have been expressly recognized under the Copyright Laws of different jurisdictions.
Choreographic works are afforded the same exclusive rights as any other copyrighted work. It is a copyright infringement and a basis for a legal claim if someone without legal authorization publicly performs the work or reproduces the work. To qualify for registration, a choreographic work must be fixed in a tangible medium of expression in such a way that reveals the movements in sufficient detail to permit the work to be performed in consistent and uniform manner.
The core element of each performance in an athletic event for sports including choreographies is the choreography itself. The question if the sequence of steps considered by the choreographer and performed by the athlete is protectable is both yes and no. Generally, the copyright is created in the moment the creative act is completed.
This article is structured in five parts, including this first one. First of all, the specificity of intellectual property protection in sporting events will be noted. Then, the preconditions of licensing a choreographic work will be recorded. In addition, the attention will be focused on the delicate balance that exists between licensing a choreographic work and using an existing choreography as source of inspiration and creation. Furthermore, the crucial case law of copyright in sport choreographies will be analyzed. The last part of the article will be the conclusion from the capture of the current protection that choreographic works receive in the framework of intellectual property.
2. Copyright in the arsenal of choreographers
I. Copyright protection in sporting events
Sport’s cultural impact was felt in even the earliest civilizations. Its continual influence has led to exponential growth in media coverage and has had vast
Σελ. 343 economic implications in modern society. Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. The creation and enjoyment of this works are manifestations of individual active freedom of expression.

The question whether sporting events are works that qualify for copyright protection was raised and addressed in the context of football in the joined cases of Football Association Premier League Ltd (FAPL) and Others v QC Leisure and Others, and also in Karen Murphy v Media Protection Services Ltd.
FAPL, who run the Premier League, marketed and distributed the television broadcasting rights for the matches based on territorial exclusivity. Certain undertakings in the United Kingdom begun to use foreign decoder cards, issued by a Greek broadcaster to subscribers resident in Greece, to access Premier League matches, instead of paying FAPL for broadcasting rights. The FAPL took the view that such activities undermined the value and exclusivity of their television broadcasting rights.
The European Court of Justice stated: “FAPL cannot claim copyright in the Premier League matched themselves, as the matches cannot be classified as works… to be classified, the subject-matter concerned would have to be original in the sense that it is its author’s own intellectual creation.”
It is of high importance that the Court continued to conclude that sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive (Directive 2001/29/EC). That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright. Furthermore, those events cannot be protected under copyright. The Court summarized with the note thought that the European Union law does not protect them on any other basis in the field of intellectual property.
However, despite this thought, the European Court of Justice referred that, none the less, sporting events, as such, have a unique and, to that extent, original character which can transform them into subject-matter that is worthy of protection comparable to the protection of works, and that protection can be granted, where appropriate, by the various domestic legal orders.
A choreographic work is one where the “composition and arrangement of a related series of dance movements and patterns are organized into a whole”. It may be used to convey a story, theme or abstract concept and can include elements such as rhythmic movements of the body and the sequence of those movements. Under the Berne Convention for the Protection of Literary and Artistic Work, the term “artistic work” includes every production in the artistic domain; whatever the mode or form of its expression.
Common elements of choreography include: (1) rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage, a court or a ballroom, (2) a series of dance movements or patterns organized into an integrated, coherent and expressive compositional whole, (3) a story, theme, or abstract composition conveyed through movement, (4) a performance by skilled individuals, (5) musical accompaniment.
Choreography is a form of creative expression that is protectable under copyright law. It is among the categories of works that is protected under Greek Copyright Law as well as under the U.S. Copyright Act.
According to copyright offices worldwide, specific types of choreography may not be copyrighted. These are the common place movement or gestures, such as latin poses, social dances, like line dances or ballroom dances, ordinary and athletic movements, such as workout routines.
Individual movements or dance steps by themselves are not copyrightable, such as the basic Waltz step. For copyright purposes, choreographic works are subset of dance and are not synonymous with dance.
A pending case poses new considerations about the classification. In Tracy Anderson Mind and Body, LLC, et al. v. Megan Roup, et al., filed on July 12, 2022, the plaintiff alleges that a former employee of the Tracey Anderson fitness method brand committed copyright infringement for copying a choreographed fitness routine and using it as her own. A ruling by the court in plaintiff’s favor could potentially expand the copyright office’s definition of “choreography” to encompass workout routines.
The copyright legal framework worldwide applies in all sport choreographies as these are performed for athletic dance, rhythmic gymnastics, artistic swimming, breaking, cheerleading, figure skating and gymnastics. Copyright law provides for creators’ property and moral rights, which are essential both for the choreography creators position as well as for the development of the sports mentioned above.

Σελ. 344II. Rights of copyright
There are two types of rights under copyright: the economic or property rights and the moral rights. Economic rights allow the rights owner to derive financial reward from the use of their works by others while moral rights protect the non-economic interests of the author.
Most copyright laws state that the rights owner has the economic right to authorize or prevent certain uses in relation to a work or, in some cases, to receive renumeration for the use of their work. The economic rights owner of a work can prohibit or authorize its reproduction in various forms, its public performance, its broadcasting by satellite.

Copyright law aims to balance the interests of those who create contents, with the public interest in having the widest possible access to that content. World Intellectual Property Organization administers several international treaties in the area of copyright and related rights.

III. The preconditions of copyright protection in sports choreographies
Under the Copyright Law, ideas are not protectable. The expression of those ideas may be copyrighted. In the choreography context, some categories of dance and non-dance movements, such as sports activities and performance art, do not fall within the subject matter protected under the copyright law even though may be unique.
If a choreographic work is not excluded, then it is protectable by copyright when three conditions are met. It needs to be an original work as well as it needs to be an expression as opposed to an idea. The third condition is that this choreographic work has to be fixed in any tangible medium of expression.
The precondition of originality is a fairly law bar to meet. A choreographic work can still be original when it contains movements that did not originate with the choreographer, such as an original combination of standard ballroom positions or even if it is derived from a preexisting choreographic work, for which permission may be required if it is not in the public domain, or other type of copyrightable subject matter. The standard requires that the choreographer adds a substantial amount of new material that is independently created.
Moreover, as it has been already said, copyright does not protect ideas, so to receive copyright protection, choreography must be expressive. Movements such as sequences of dance sport ballroom poses tend to be seen as unprotectable ideas rather than copyrightable expression. If a series of movements serves basic functional purposes for example a certain athletic stretch routine, these will not be considered choreographic works.
The precondition of a fixed choreography needs some further clarifications. Because choreography is an intangible, as opposed to material, art form, it is not automatically fixed the way a painting or a sculpture might be. An athletic choreography may be fixed by transcribing the movement using standard dance notation, such as Labanotation or Banesh Dance Notation or by documenting the movement in textual descriptions, photographs, or drawings. One more way for fixing an athletic choreography is by making a video recording of a performance of the choreography.

Once a choreography work has met these requirements, the owner of the work enjoys certain exclusive rights, whether the work is registered with a copyright office. However, understanding who owns the copyright is not always straightforward. The general rule is that the copyright “vests with the author”, i.e. whoever created the choreography owns it. Dance contracts often explicitly state who owns the copyright to the choreography under the contract and usually ownership of the rights belongs to the choreographer.

On the other hand, if someone creates a work made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright unless both parties involved have signed a written agreement to the contrary. The choreography routine would be considered a work made for hire if the employee, i.e. the trainer, prepared it in the scope of the employment or if it was specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture of other audiovisual work, as a translation or as a supplementary work.
Where a copyright is secured in favor of the choreographer, it translates to the fact that the proprietor has the
Σελ. 345 right to make copies, prepare derivative works or adaptations, distribute the same for sale, perform it, or even display it in another medium. The right of the performer is not inherently the same as that of the choreographer. The court will ascertain a case of infringement while considering whether or not an infringing copy is substantially similar to the original.

3. Licenses and creativity: who has the upper hand
Ι. The worldwide framework
Performers can have their rights protected, even though some of the most popular steps have not been claimed. Taking as example the famous “moonwalk dance”, which is often accredited to Michael Jackson, it was first performed and expressed by Cab Calloway in 1930. The same stands true for the “walking against the wind” dance, popularized by Bill Bailey yet not registered and claimed. It has become a common dance routine, a social dance step, which cannot be governed by copyright law. Thus, it is interesting to note how an iconic or original dance step can be registered.
First of all, there is no universally accepted definition provided for the uniform application of the law on the said subject matter. Choreography is the art of creating or arranging dances consisting of an original technique of dance notation.
There are various issues arising while defining the term “athletic dance”. Firstly, since dance involves the techniques of human planned movements, it draws closer to other forms, like gymnastics, which is where a line has to be drawn. Moreover, dance is commonly associated with music, but at the same time, there are dance forms like contemporary performances, which utilize silence while expressing the art form.

Comparing laws, the states can redirect their priorities to meters focusing on the copyright licenses. Thus, the key function of comparative law in the distinctive field of copyright in sport choreography is the communication and “transfer” of the ideas, solutions and legal texts concerning the rights of the choreographer in connection with the progress of the sports based on choreographies. Comparative law is a necessary discipline today in a world in which law crosses the national borders and is mixed with international influences and ideas. Comparing legal cultures reveals the similarities and differences among them and why these exist.
Among the immovable barriers to the law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forces to interact as part of the implementation of the law across two different legal cultures. This conflictual interaction can impede the success of the law provisions concerning the copyright of the sports choreographies.
Given that the world is incorrigibly plural, comparative law reveals solutions for future of the copyright affecting sports and enhances the development of strategies through which this future might be achieved. Comparative law can contribute states to find the best solutions to global or common problems together and promote communication, even between distinct approaches. Copyright in sport choreographies should be approached and applied in a worldwide scale as they affect sports internationally.
There is a continuous pendulum between the cultures, the laws and the sports. Laws are cultural phenomena that affect the way of “operation” of the different sports. It is the law that echoes the principles of protecting the choreographer’s creativity as well as sports development. There is no parthenogenesis in thought, there is no parthenogenesis in choreography. The balance between protecting the rights of the choreographer and the creative adoption of ideas is delicate and fragile. Comparing legal cultures, lawyers can discover insightful elements that enrich the legal framework of both licenses and creativity. In such a way, the laws are developed in order to tackle new problems arisen and regulate behaviors that spring from globalization and universalism in sports.
In sport choreographies, the choreographer express ideas, stories, feelings, thoughts, and ideals by movements, static or dynamic. He expresses and interact through body movements, often accompanied by music, in artistic costumes, setting and lighting. A choreographic performance integrates several elements of creativity, many of which are protectable as intellectual property in the form of copyrights, industrial designs and patents. Representations used by athletes can be protected as trademarks, and their identity under the publicity rights regime.
II. The Greek Law framework according to 2121/1993.
In Greece, the protection of intellectual works is provided for in Law 2121/1993, as this is amended and in force. According to the Greek Law, “work” means the original intellectual creation of speech, art or science, which has a form accessible to the senses. From a methodological point of view, “work” is a legal concept and this is why there is the possibility of appeal before the Supreme Court in case of a wrong interpretation. The work
Σελ. 346 is the result of a creative act of the human spirit. Therefore, a creation in which the human spirit has not acted is not considered a work. Unique criterion for recognizing a work as protected by copyright law is originality.

Originality is not synonymous with the effort and diligence of the creator but must express through the work something from the personality of the creator, something from the uniqueness of each one personality. So, the originality is tested by the criterion of statistics uniqueness: A work is original when under the same conditions as the same goals, another creator in the ordinary course of things would not have created the same work. Among the different form of works, choreography is expressly defined as a work protected by Law 2121/1993 article 2. The public supervision of intellectual property is carried out by IPO, the purpose of which is the protection and promotion of the intellectual property of the creators and the beneficiaries of the related rights as well as the implementation of the legal texts that govern intellectual property rights.

According to the principle of the idea-expression dichotomy, the main protected element of an intellectual creation is the original form in which this is perceived by the human senses, i.e. the way of expression by which the idea and inspiration of the creator is externalized and not the idea which it contains. The idea is not protected by intellectual property due to the principle of freedom of the circulation of ideas for the development of scientific research and arts.
A work is protected according to intellectual property law independently of the artistic or aesthetic value. Moreover, the work does not need to be new, if it presents newly emerging ideas or if it deviates from the level of the already known art of technique. The only precondition is the manner and the form that the choreography is presented to differ from pre-existing choreographies and to reflects the personality of its creator.
Furthermore, it has to be underlined that Greek Law does not provide for a formal system of vesting rights of intellectual property. The intellectual property right is acquired without any formal process but just by its creation. Thus, neither prior deposit in administrative agency or authority nor declaration in any register is required. However, the lack of deposit of the work in the relevant registry creates evidence difficulties. This is why creators often file their work in the registry of the Intellectual Property Organization.
The claim of empirically perceptible form of the work does not mean that the work should be firmly embedded in a material carrier. In the article 2 of Law 2121/1993, it is clearly stated that the intellectual works are protected even if the fixation of the work in the material is fleeting, as this happens during oral performances or pantomime. In contrast, American Intellectual Property Law requires fixation into a meterial carrier in a stable way.

The right of the intellectual property is always born to the natural person who performed the work and this principle is well-know as “principle of the creator or of the truth” and, vice versa, only a natural person can acquire primarily intellectual property rights. Legal entities acquire property rights only with derivative way and never moral rights. The right of intellectual property is universal in nature. The beneficiary has all possible powers over the work.
If the choreographer is employed, the choreography he creates in execution of a contract in principle belongs to him, but, if there is no contrary agreement, his powers on the property right are transferred by law to his employer fulfilling this way the purpose of the contract.
Copyright law promotes creativity in the arts by affording artists lengthy terms of protection against copying. Copyright law protects the expressive elements of choreography and this protection inheres upon the creation of the original choreography. As most continental European nations laws, the Greek law protects attribution and the artistic integrity of expressive works through property as well as inalienable moral rights.
4. The case law of copyright on choreographies
Comparisons contain hidden law choices. Countries communicate different views, ideas and practices in the field of copyright. Comparative practices are made not only across legal cultures but within the legal culture as well. Foreign models of copyright law may improve domestic law. It can help in the formulation of good practices concerning the development of copyright in sports choreographies. More than this, the study of comparative law provides and overview of law on a world-wide scale.
In the era of globalisation and international cooperation, comparative law proves necessary for the formulation of a harmonized copyright law aimed at the protection of the rights of the choreographers. A choreographer’s most valuable assets are the dances he or she creates. The primary value of a dance is not who choreographed the
Σελ. 347 dance but rather the movement that it contributes to the art of dancesport as a whole and to the world at large.

Analysing the Copyright Directive 2001/29/EC, the European Court of Justice stated that copyright withing the meaning of Article 2 (a) of the Copyright Directive is only applicable in relation to a subject-matter which is original in sense that it is its authors own intellectual creation…With respect to the scope of such protection of a work, it follows from recitals 9 to 11 in preamble to Directive 2001/29 that its main objective is to introduce a high level of protection, in particular for authors to enable them to receive an appropriate reward for the use of their works, including at the time of reproduction of those works, in order to be able to pursue their creative and artistic work.

According to European Court of Justice, for the purposes of copyright protection, the term “literary and artistic works” is understood to include every original work of authorship, irrespective of its literary or artistic merit. The ideas in the work do not need to be original, but the form of expression must be an original creation of the author.
Using the methods and the results of comparing different case law, jurists, lawyers and academics can form new strategic lines or reform the existing ones, so as to adopt an effective copyright mentality of sports choreographies. Choreographers should take strides to preserve their culture and should do so by gaining legal recognition and copyright protection for their dances.
The first major case involving dance copyright was Horgan v. MacMillan, Inc. in 1986. The case centered around choreographer George Balanchine’s rendition of The Nutcracker, which was photographed and featured in a book. A district court found that there was no copyright violation because the photographs did not infringe upon the copyrighted choreography. The U.S. Court of Appeals, however, reversed the decision since the photographs used were similar enough to be used to recreate the choreography. Circular 52 now officially states for a choreographic work to qualify for registration, it must be fixed in a tangible medium such as dance notation, video recording, text description, photographs, or drawings.
Another significant case involved the choreographic works of Martha Graham, known for revolutionizing the field of modern American dance. Upon her death, Graham wished for the copyrights for choreography be passed to her heir Ronald Protas. Unfortunately, the court ruled in 2002 that the Martha Graham Dance Center, rather than Protas, owned the copyright for most of her dances. Since the dances in question were created through the center, they were considered works made for hire, thus the property of the employer. Scholars Abitabile and Jeanette Picerno write, “If Graham had either copyrighted her dances or signed a written contract with the School stating ownership over her dances, the School would not maintain any rights over them”.

At its core, improvisation demands an ongoing interaction with shifting tight places, whether created by power of relations, social norms, aesthetic traditions, or physical technique. Improvised choreographies literally involve giving shape to oneself and deciding how to move in relation to an unsteady landscape.
5. Conclusion
The law is dynamic, and therefore, it can evolve to engulf different subject matters within itself. There is not much jurisprudence available on copyrighting choreographic works, yet, it can be easily established that registration has a vital role in ensuring protection and imposing sanctions in case of unauthorized use. The development of appropriate jurisprudence requires the interaction of law and subject matter experts in the said domain of knowledge to understand newer trends and accommodate the same.
Many athletes and choreographers wonder if their creations are anyhow protectable. Protecting intellectual property provides athletes, choreographers and trainers the opportunity to license, merchandise and commercialise their work. From licensing of sport choreography to merchandising choreographic work, intellectual property has the potential to make a difference to athletes and their financial standing. The core element of each sport performance is choreography. A copyright is created in the moment the creative act is completed. To enforce one’s copyright proof of the creation itself and the date of creation is required. Therefore, it is recommended to register the copyright with an official authority or deposit hardware describing the copyrighted work product with a notary or another trustworthy institution.
Copyright law is needed ungently in fields like sports choreographies, where the creative structure has to be protected. Under copyright law, creators can be rewarded fairly and continue to create choreographies for sport as well as dance performances. Copyright law concludes to be the safeguard of the choreography creators and an essential motivation for them in order to invest in their ideas, develop the level of sport choreographies and enhance the endeavors for great athletes and well performed sport events.
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