United States: The Business Of Show, At Collaboration's End, Ownership Rights In A Joint Choreographic Work

Last Updated: February 1 2018
Article by Kimberly M. Maynard

Great dances are not created in a vacuum. A choreographer's instruments are her dancers; she often uses her dancers to experiment with new choreography and to craft new choreographic works of art. But dancers can be more than instruments, more than inspiration. Often, they contribute their own ideas to the choreographic process, and frequently those ideas are expressed as choreography that becomes part of the dance. In these instances, dancers are true collaborators who, under copyright law, may be joint owners with their own rights to perform the choreographic work.

This article discusses the basic tenets of copyright law, the implications of creating a jointly owned work, what steps can be taken to avoid joint ownership, and what issues joint owners of a collaborative choreographic work may wish to address through contract. The information in this article is intended to provide a high-level understanding of the most common issues related to collaborative choreographic works, but is not an exhaustive analysis. Readers who wish to address ownership and other rights related to collaborative works, joint ownership and/or choreography should consult an attorney with specific knowledge of copyright law.

Copyright: briefly defined

Copyright is a legal right that gives the author of an original creative work exclusive rights in that work, including the right to prohibit others from performing or otherwise copying it. Copyright arises once a work has been fixed in a tangible medium of expression. For dance, this may be when the work is memorialized in a video, in the notes of a choreographer or dancer, or in a more formal notation system. Generally speaking, the owner of a copyright in a choreographic work owns the particular sequence of movements that comprise the choreography. As the owner, the choreographer can prevent others from performing that sequence of movements, creating and performing a new work that is closely based on the choreography, filming the choreography, and displaying or distributing a film of the choreography.

Joint ownership of a collaborative choreographic work

Typically, the author of a dance — and the owner of the copyright in the choreography — is the choreographer. However, when a choreographer goes beyond using his dancers as instruments, and works with them as collaborators who contribute their own creative expressions to the choreography, copyright law may dictate that the dancers are joint owners of the work. As such, they have equal rights to the work.

Absent a contract to the contrary, joint owners of a choreographic (or any creative, copyrightable) work each have the same, non-exclusive rights to the work. Practically speaking, this means that each joint owner can license, non-exclusively, the work to be performed by any other company, including one that may not have the necessary technique to perform the work as intended. This also means that two or more joint owners might license the work to two different dance companies that will perform the work in the same city at the same time. This can create issues, including issues for presenters, who may refuse to present a work if there is a possibility that they will face competition from another presenter showing the same work in the same city during or around the same time period.

Contracting around a jointly owned choreographic work

Although copyright law's default (generally speaking) is that all contributors to a work are joint owners, a company, choreographer or dancer can avoid this conclusion and the myriad issues it raises by entering into a simple contract that clearly lays out every party's responsibilities and rights. However, as with all contracts, each term has consequences that every artist should consider.

From the choreographer's perspective

Choreographers who work with dancers on a project-by-project basis and who rely on those dancers to contribute to the creative process may consider entering a contract with terms stating that the choreographer will own all the copyright in the choreography and that any rights held by the dancers are assigned to the choreographer. This is often understood by dancers when they sign on to a project, but putting it in a contract is a simple way to ensure that the choreographer is the sole owner of the work and can control when, where, and by whom the work is performed in the future. It also allows the choreographer to guarantee to presenters that the work will not be performed by another company a block away two weeks earlier.

From the dancer's perspective

While the above arrangement is typically ideal for choreographers, it has some consequences that dancers should consider, especially if they have their own choreographic aspirations. Specifically, once a dancer assigns all rights in choreography — or in portions of a choreographic work — to someone else, she cannot use the same choreography in a different work. If this is a concern, then the dancer may consider negotiating "carve outs" in the contract that acknowledge the dancer's rights to reuse choreography in his own works. This can be a simple solution where the dancer's individual contributions amount to a relatively small or distinct portion of the work.

One important caveat is that ideas themselves are not protected by copyright law. Thus, a dancer who assigns rights in choreography about an idea, such as a romantic relationship, is not prohibited by copyright law from making his or her own work about a romantic relationship. Instead, she will only be prohibited from using the same expression, i.e., the same choreography, to convey that idea.

From a dance company's perspective

A dance company that employs its choreographers and dancers and intends to solely own the choreography can take a slightly different approach than choreographers. Under copyright law, if a choreographer or dancer is an employee of the company and is hired, at least in part, to contribute choreography to dances, then the choreography will be deemed a "work for hire" and be owned by the dance company. Note, however, that the work for hire doctrine only applies where contributing choreography is within the scope of a choreographer's or dancer's employment. Because choreographers and dancers typically have many jobs, and are often strategically laid off, there is a risk that the work for hire doctrine may not apply to certain choreography (in which case the choreography would belong to the choreographer and/or dancers who created it). To protect against this, dance companies should include provisions in their choreographer and dancer contracts assigning all rights to the work to the dance company.

Addressing joint ownership

Though many parties will wish to avoid joint ownership, there are times when it is beneficial, including when all parties will contribute equally to the choreography or have different connections that can be used to strategically exploit the work after it is complete. In those instances, joint owners who wish to streamline the process of licensing the work may wish to consider entering a contract setting forth key issues likely to be raised by presenters or others seeking to license a joint work, such as:

  • Which joint owners will be able to license the work to third parties;
  • Which joint owners will be able to perform the work themselves;
  • In what territories will each owner be able to license the work;
  • How often can the work be licensed;
  • Who will reconstruct or stage the work on licensees;
  • What licensing fees are appropriate (and who will receive those fees);
  • What types of dance companies can license the work; and
  • How each owner will be credited.

Agreement on these and other terms will not only avoid misunderstandings among the joint owners, but will also give companies and presenters who wish to license the work comfort that they will be able to perform the work as originally intended and will not risk drawing complaints from other joint owners.

In sum

Copyright law allows for many ways to allocate ownership of collaborative works, most of which can be arranged through clear contracts that contain the appropriate legal language. Best practices include hashing out ownership early on, and then creating a contract that reflects the ownership arrangement. While this requires more work up front, it can save confusion, time and energy later — and can allow dance artists to focus on what is most important: creating and performing dance!


As originally printed in News from the Jerome Robbins Foundation, Vol. 4, No. 2 (2017).


www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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