Does Intellectual Property Rights Tango With Appropriation?

Introduction

Dance is an abstract and complex expression of ideas. It is deeply intertwined with traditions, heritage and cultural identities. The article hopes to shed light on the complex relationship between Intellectual Property Rights (IPR) and cultural expression and its appropriation. It also highlights the challenges faced by choreographers attempting to protect their works from plagiarism.

Initially, the article provides an overview of copyright law and its protection in the Indian context. It also presents judicial opinions by giving an illustration of a landmark case in this niche area of law. The article then moves on to give recent instances of IPR violations in the mainstream and how the strict judicial stances have created unfavourable conditions for artists like choreographers to thrive. It then delves into the cultural appropriation of dance by dominant social groups from the West with various examples of the same. The final section then examines the possibility of legal remedies for instances of cultural appropriation.

How is Choreography Protected under Indian IP laws?

In India, choreography is copyright protected by being included in the definition of "dramatic work", under the Section 2(h) of the Copyrights Act, 1957 ['the Act']. Dramatic works comprise expressive forms of art with emotion, a theme, scenic arrangement, acting, and entertainment.

To obtain copyright protection for dance choreographies, originality, systematicity and tangibility are essential components. The component of tangibility entails the challenge of recording the choreography in literature. Dancers who are performers (according to Section 2(qq) of the Act) of the sequence of movements laid out by choreographers have another set of rights under Chapter VIII of the Act distinct from the rights of a choreographer.

In Academy of General Education, Manipal and Anr. v. B. Manini Mallya, the appellant claimed that the respondent had infringed their copyright by performing the Yakshagana Ballet dance, a dance form created by the director of the appellant institute Dr. Kota Shivarama Karanth, in New Delhi without prior consent. The court declared that since the dance was performed to a non-paying audience by an educational institution the performance could be considered fair treatment under Section 52(1)(i) of the Act.

Challenges Faced by Choreographers in Exercising IPR

Dance choreographies are difficult to learn as they are difficult to protect from copyright infringement. JaQuel Knight a prominent choreographer in American pop music, would agree considering the challenges he faced in copyrighting his choreography of Beyonce's song, "Single Ladies (Put a Ring on It)". It was only in 2020 that he became successful, and thus, he turned out to be, according to Billboard, the first commercial choreographer in pop music to successfully copyright their work. The most prominent challenge in registering for copyright protection of choreographies is that it has to be in the form of literature. Lynne Weber, the executive director of The Dance Notation Bureau, a professional dance notator, used Labanotation, the most popular form of dance notation, to create a 40-page-long score for the choreography of "Single Ladies".

In the USA Copyright Office, the number of choreographic works received in a year for registration is usually less than 20 according to Robert Kasunic, the U.S. Copyright Office's associate register of copyright and director of registration policy and practice. Most choreographers are not even aware that their work can be protected by copyright.

Besides issues like the unpopularity of copyright protection of choreography due to lack of awareness and necessitating notation of choreography, the judiciary also remains stringent in the enforcement of copyright protection. This is best illustrated in the cases filed by Alfonso Ribeiro, rapper 2 Milly and Russell Horning against Epic Games alleging that their signature moves, The Carlton, The Milly Rock and The Floss respectively, were plagiarized. They claimed that these moves were renamed and used as "emotes" for characters in the video game, 'Fortnite'. Some of the claims were withdrawn because the US Supreme Court held in another case that for registering a claim of copyright infringement, it had to be registered for copyright protection. In the case, Hanagami v. Epic Games Inc., Kyle Hanagam another choreographer who had alleged the same, obtained a copyright for his choreography and took legal action. However, the California federal court dismissed the case declaring that a series of poses were not copyrightable in itself, that the work has to be considered as a whole according to Apple Comput., Inc. v. Microsoft Corp. in which the Ninth schedule recognized that the substantiality of copying "is measured by considering the quantitative and qualitative of the copied portion in relation to the plaintiff's work as a whole", and also stated that the dance steps were not substantially similar since one of them was performed by a human in the real world while the other was performed by characters in a virtual world. The US Copyright Office too have conveyed that "[a] story, theme or abstract composition conveyed through movement" for dance steps to be copyrightable. The Court referred to Rentmeester v. Nike, Inc. which noted that "photos can be broken down into objective elements that reflect the various creative choices the photographer made in composing the image—choices related to the subject matter, pose, lighting, camera angle, depth of field, and the like, ... none of those elements is subject to copyright protection when viewed in isolation."

There exists a plethora of challenges in copyrighting choreography. In addition to this, the judicial system is creating a hostile environment for choreographers trying to exercise their Intellectual Property Rights to protect their work from plagiarism. This recurring pattern of unsuccessful attempts by choreographers to protect their art, despite filing for registration of copyright, will continue to discourage others from registering as well, leading to exploitation and pecuniary losses among artists.

Cultural Appropriation of Dance Styles

Cultural appropriation is when a dominant group utilises aspects of another minority culture inappropriate manner without giving acknowledgement or compensation. It is composed of heteroglossic intellectual traditions encompassing postcolonial theory, critical race theory, and critical perspectives on globalization and cosmopolitan consumption. The dancing community has been wrought with appropriation for a long while. Dance is learnt from mirroring and copying the movements of others. People of any culture are free to enjoy dances of any culture. However, each culture's traditions and heritage must be honoured and represented appropriately. For example, in 2019, Justin Beiber released a music video for his song, "Sorry" which featured light-skinned dancers, from New Zealand, dancing a Jamaican-style dance called dancehall. The choreographer, Parris Goebel, was later accused of cultural appropriation. And on August 23, 2013, Miley Cyrus, a white woman, twerked onstage at the MTV Video Music Awards. It wreaked havoc on the internet and in the music industry. According to many, her actions helped make twerking mainstream. Many accused Miley of appropriating black culture without giving it proper credit. While some other black personalities like Big Freedia appreciated the visibility Miley's actions brought to the black culture and black artists like herself.

Appropriation of black culture is not something new. Dances like 'rock' with African-American roots became known popularly as a patriotic dance performed by white soldiers during the French Liberation. Other dances like Rock, lindy hop, jerk, jitterbug and more recently voguing lost their radical political implications when they became popular. Twerking, a "sexually provocative" movement rejects the traditional white definition of "grace" and challenges the norms set in place for gender, class and race. When appropriated by the white, upper class, this socio-political discourse rooted in black oppression is tethered and dispossessed.

La Bayadère is a classical ballet created by French choreographer Marius Petipa, and first staged in St. Petersburg in 1877. It is set in the Royal India of the past where a temple dancer (bayadère), Nikiya and a noble warrior, Solar falls in love with each other and a High Brahmin whose love is not reciprocated by Nikiya tries to separate the couple. The piece dilutes Eastern culture by drawing from a multitude of distinct cultures and employs traditional Indian dance sequences which are usually taught in India by experienced teachers who understand its heritage and historical significance. The characters of fakirs and Brahmins in the piece were based on stereotypes of Orientalist imagination. While ballets like these were enjoyed in the West, the colonial and nationalist history of India banished temple dancers labelling them as prostitutes. However, in the 21st century, ballet studios like the Pennsylvania Ballet Studio have grown more aware of the racist stereotypes perpetuated in the piece. They invited Pallabi Chakravorty, a dance anthropologist who had extensively studied Indian classical dance and orientalism as a consultant to shed light on the aspects of Indian classical dance.

When racially and ethnically diverse, mostly black, persons who were part of the LGBTQ+ community were driven away from society during the AIDS epidemic, they found refuge in underground clubs and balls where dance styles like punking, voguing and bucking (J-Setting) emerged. Punking is now popularly known as waacking due to straight dancers renaming it to 'waackin' with the intention to cut away from its queer roots. Madonna released her popular song, "Vogue", inspired by dance clubs. She sought help from voguers from the club Xtravaganza, Jose Gutierez Xtravaganza and Luis Xtravaganza for the dance in her music video and tours. Even though Madonna honoured the roots of the dance and its culture, the mainstream refused to acknowledge its existence.

Are Legal Remedies Available for Cultural Appropriation?

Cultural appropriation by dominant social groups denies social justice and respect to minority groups. It is a result of power dynamics and a colonial perspective that involves commodification and exploitation of cultures by the wealthy elite. The legal system also often favours the wealthy multinationals and rich nations who can swiftly register for Intellectual Property Rights over appropriated content because of the easy access to resources like awareness, legal and institutional conditions, and fiscal incentives.

The best way to protect cultural expressions like dance would be to file them as Traditional Cultural Expressions ['TCEs']. The WIPO has laid out mainly two methods of protection of TCEs (i) positive protection involves prevention of exploitation of TCEs for commercial gain where the benefits are not equitably shared as well as promoting TCE holders to build enterprises for its expression, and (ii) defensive protection which consists of strategies to ensure unfounded claims for IPR over TCEs are not granted. Aligning with the positive defence protection, articles 29 and 30 of the Indian Constitution have provisions that allow the protection and development of minority cultures. Further, recent developments in the uncharted territory of copyrighting of choreographic works, the US Court of Appeals has made a significant landmark by overturning the judgement on Hanagami v. Epic Games Inc. by the California Federal Court by stating that the district court erred in its application of the substantial similarity test.

Besides these, events of cultural appropriation rarely obtain legal remedies on the grounds that it is challenging to identify a certain group of people as the copyright holder of a specific component of culture. The laws governing copyright allow for many copyright holders. There are promising instances of large enterprises in the United States giving credit to indigenous persons bioprospecting for pharmaceutical compounds, however, it is practically impossible to assign the Intellectual Property Rights of a phenomenon to any particular race, religion, caste etc.

Conclusion

Dance is learnt by mirroring and copying another's movements. "Biting" is a term in the b-boying or breakdancing community that is often thrown around to convey that a move has been copied. But even among dance crews, the belief, "...people need to bite to learn how to break" – Frankie Flave (Killafornia), is common. They believe certain foundational moves can be copied while the "original" routines, moves, style or character should not be.

It is, in fact, impossible to learn dance without "biting". Moreover, the dance community is diverse especially now more than ever which inevitably can lead someone to be inspired by another culture. The issue is not the mere expression of an aspect of another culture. It is the lack of respect and understanding of its roots especially by dominant groups who have played a role in the suppression of the same culture that they are now trying to appropriate. The Pennsylvania Ballet Studio seeking the help of an Indian classical dance and orientalism expert to learn more about the problematic representation and history of the ballet piece, La Bayadère, is a great example of how to acknowledge cultural appropriation in the problematic piece.

Since the legal systems continue to pull their punches in this category of copyright protection, being aware of the ethical repercussions of cultural appropriation, creating inclusive and diverse dialogues regarding the same in the dancing community and also crediting and respecting the original source of the dance is, without a doubt, the best possible way in the current predicamental state to embrace appreciation.

References

1. The Copyrights Act, 1957.
2. Aranya Nath & Sonak Sah, Copyright Protection On Choreography, 9 JETIR a390 (2022).
3. Academy of General Education, Manipal and Anr. v. B. Manini Mallya 2009 (39) PTC 393 (SC).
4. Chris Eggertsen, Steezy: Dance App Gives Choreographers Credit, Revenue Stream, Billboard, (2023), https://www.billboard.com/pro/steezy-dance-app-choreographers-credit-revenue-viral-trends (last visited 26 Sept. 2024).
5. Rebecca Milzoff, Inside 'Single Ladies' Choreographer JaQuel Knight's Quest to Copyright His Dances, Billboard (2020) https://www.billboard.com/music/music-news/jaquel-knight-beyonce-megan-thee-stallion-billboard-cover-story-interview-2020-9477613/ (last visited 26 Sept. 2024).
6. Hanagami v. Epic Games Inc., Loeb & Loeb LLP (2022) https://www.loeb.com/en/insights/publications/2022/09/hanagami-v-epic-games-inc (last visited 26 Sept. 2024).
7. Apple Computer Inc. v. Microsoft Corp., 759 F. Supp. 1444 (N.D. Cal. 1991).
8. United States Copyright Office, Copyright Registration of Choreography and Pantomime, CIRCULAR 52 (Issued on October, 2022).
9. Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018).
10. James O. Young & Conrad G. Brunk, The Ethics of Cultural Appropriation, Wiley-Blackwell (2009).
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13. Greg Tate, Everything But the Burden (2003).
14. La Bayadère, American Ballet Theatre https://www.abt.org/ballet/la-bayadere/ (last visited 26 Sept., 2024).
15. Avital Vainberg, Appropriation of Black LGBTQ+ Club Dance Styles (11 Dec., 2020) https://storymaps.arcgis.com/stories/09c522debc204870b55d30c46aea742f (last visited 26 Sept. 2024).
16. Stephen Ezell & Nigel Cory, The Way Forward for Intellectual Property Internationally, ITIF (2019).
17. Ricardo H. Cavazos Cepedai, Douglas C. Lippoldti and Jonathan Senfti, Policy Complements to the Strengthening of IPRS in Developing Countries, 104 OECD Trade Policy Papers (2010).
18. World Intellectual Property Organization [WIPO], Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore WIPO/GRTKF/IC/39/INF/7 (Mar. 22, 2019).
19. The Constitution of India, 1950.
20. Kyle Hanagami v. Epic Games, Inc., Et Al, No. 22-55890 (9th Cir. 2023).
21. Rentmeester v. Nike, Inc., No. 15-35509 (9th Cir. 2018).
22. George Frisvold & Kelly Day-Rubenstein, Bioprospecting and Biodiversity Conservation: What Happens When Discoveries Are Made?, 50 Ariz. L. Rev. 545 (2008).
23. Mathias Siems, The law and ethics of 'cultural appropriation', 15(4) Int. J. L.Context 408 (2019).
24. To Bite... or not to Bite, Thinking Out Loud (2011) https://lucasmarie.wordpress.com/ (last visited 26 Sept., 2024).

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