Introduction
Art is a combination of an individual's intellectual capabilities and their passion for the art, this makes it original as well as subjective. Dance is considered as a fully-fledged art form, belonging to the performing arts, a goal in itself and a means of allowing a human being to express his inner feelings, thoughts and experiences.
Creativity has so far been discussed in terms of an individual achieving something of cultural significance, in this absolute sense, the creative person is one who makes a unique contribution in art or science or some other valued form of endeavor. Dance has its own content, vocabulary, skills, and techniques, which must be understood and applied to be proficient in the art. The elements of dance are the fundamental concepts and vocabulary for developing movement skills as well as understanding dance as an art form. All of these elements are present in a dance.
This expression is a product of creativity; this creativity is offered protection under the law through the Copyright Act, 1957 [Hereinafter 'the Act'].
Protection under the Copyright Act, 1957
Conditions which must be fulfilled for a choreographic work to come under the protection of the Act
Choreographic works are protected under the wide ambit of dramatic works within this Act; Section 2(h) of the Copyright Act defines dramatic works as, "...any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film."
The Act as well as the treatment of Courts towards on the topic mandates that there must be an original dance sequence, a single step or body movement cannot be copyrighted. To obtain a copyright, the expression of the idea must be in a fixed form, it can be understood from this Section that cinematograph films will not be a form of fixation, and analyzing the definition of cinematograph films under Section 2(f) of the Act it can be concluded that all forms of video recordings fall within this definition. Therefore, to apply for protection under the Act, a dancer must record the sequence of steps in writing or 'otherwise'. The term 'or otherwise' has a wide and unclear scope and can easily be understood to include a pictorial representation of the sequence as there has been no judgement denying the same. There have been cases in India where choreographers have attempted to copyright their dance moves to prevent them from being freely used, an example of this is when Remo D'Souza decided to copyright some moves from the song 'Bezubaan' from Any Body Can Dance. A copyright can be granted to such dance sequences under Section 13(1) of the Act which allows copyrights for dramatic works.
There are various other rights available to dancers in India such as performer's rights, these are covered under Chapter VIII of the Act. The primary difference that exists between copyrighting a dance sequence and performer's rights are that performer's rights allow them the autonomy over all the audio and video recordings and any reproduction/distribution/or any other such acts would be considered as an infringement of the individual's performer's rights.
Fair use v. Copyright Infringement
The Act guarantees the registering choreographer the exclusive right to control derivations based on the original work. A derivation would include any transformation or adaption of the original work, any revival that includes significant changes made to accommodate modern dancers or modern styles constitutes a derivative work instead of simple performance. When there is a question of violation of these rights it must be determined as to which category of rights they fall in, whether it constitutes an infringement or whether it falls within the scope of the fair use doctrine. In the Act, a dramatic work is considered to be published when it has been performed in public.
The various sub sections and clauses of Section 52 specify instances wherein a work is not considered to have infringed a copyright. It specifies that a work shall not be considered an infringement of the copyright when such a reproduction is for the purpose of research or private study, or the performance of such work was done in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.
When the performance of a dramatic work is by an amateur club or society, especially if the performance is given to a non-paying audience, or for the benefit of a religious institution
An adaptation or derivation of a work is generally considered to be an infringing act unless such an adaptation or derivation is vastly different from the original upon which it relies.
Important Case laws dealing with the protection of choreographic works
The case of Academy of General Education, Manipal and Anr. v. B. Manini Mallya, where the Hon'ble Supreme Court reconsidered the fair use doctrine. Dr. Karanath had developed and copyrighted the Yakshagana Ballet dance form, in his will he left the copyright to Manini Mallya. She filed a suit for declaration, injunction and damages alleging violation of copyright in respect of the ballet form, she said that the Academy had infringed her copyright without obtaining prior permission from her.
The Court held that the copyright protection rights were vested with Manini Mallya, however the Academy could take the statutory benefit of the fair use provisions. Especially if the dance is performed within the meaning of provisions of Section 52(1)(i), as the performance is conducted before a non-paying audience.
In the case of Anupama Mohan v. State of Kerala the Court involved in a in depth discussion of the Performer's Rights. The Kerala School Youth Festival is organized by the Kerala Government, Anupama Mohan is a Kuchipudi artist who teaches students who perform in this festival. Videos of the performances were recorded - with the consent of the parties - however these video recordings were sold by the organizers without the authorization of the Copyright holders. The Court held that there was a violation of Copyright.
Conclusion
Choreographers create and perform an increasing number of works across the world as well as in India. India is home to a number of classical dances and Western dance forms, in a country where the cultural landscape is so vast, the current legal framework for copyright protection of choreography is not sufficient. The Copyright Act, 1957 leaves many loopholes and alongside the fact that there are minimal case laws it leaves many questions unanswered. In particular the decision of the Court in Anupama Mohan v. State of Kerala, the Court does not provide an answer as to how there is a presence of a copyright in the instance case as there appears to be only video recording which falls under the definition of cinematograph film as previously mentioned. The Parliament should provide a more detailed set of rules to ensure that the choreographers are adequately protected and fair use provisions are not affected. Courts need to further clarify and elaborate on how far the fair use provisions can be expanded. This would allow for a better protection of the choreography in the country.
Author: Poorvi Yerrapureddy a Student of The National University of Advanced Legal Studies (Kochi), and intern.
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