There is a growing interest in profiting from dance, given the rise in presenting live and experiential content across the creative sector, from fine arts to marketing. In the fall of 2011, Performa, New York’s performance art biennale, held a panel on the addition of dance in museums and visual arts institutions’ programming entitled “Why Dance in the Art World?” At the other end of the spectrum, in the commercial world, experiential marketing is the new frontier. The need to interact brought about by the Internet has expanded advertising’s territory to consumers experiencing and identifying with products through live participation. Many online viral successes have been found in dance-driven content, notably the most watched and re-danced video ever, which now has close to two billion views—Psy’s dance music video “Gangnam Style.”
Currently, the collection of residuals from the ownership of choreography is not common practice, as it is in the music and film industries. However, the foundation for the assertion of such rights does now exist within copyright law for choreographic works. To put things in perspective, music and cinema have been protected by copyright since the beginning of the 20th century in the United States. There are entire industries built on the ability to enclose authored intellectual property. Dance, in contrast, was only extended copyright in 1978. The arguments that Congress used to continue to refuse copyright to choreographers included claims that dance was not “useful” to society, that it would only be worthy if it was part of a dramatic work so as to convey a dramatic tone or story, and that it was difficult to define and hence to “fixate”—to record it so that it can be reproduced.
Unlike music scores, theater scripts, or visual art objects, establishing a clear method for scoring choreography presents difficulties. One can identify classic dance movements, and perhaps indicate foot patterns, but how does one clearly notate nuances of movement in the total body and use of space and time? Notations, such as the Labanotation, do exist, but video has become the most common means of recording dance. In 1959, Agnes DeMille, a renowned choreographer and dance advocate, answered Congress’s concerns with a riveting letter in which she outlined some of the widespread misreadings of dance and the injustice of according copyright protection to other art forms but not to dance.
In answer to your letter, let me make it clear that what the choreographers want is not protection against the performance of their dances, but performance for pay. If new dance steps are invented for social or ballroom dancing, naturally people have every right to copy these and perform them for their own amusement. Just as people can whistle tunes without any tax, but if an exhibition piece of ballroom steps is devised and this combination is copied and performed for money, I think some infringement of rights has taken place. What I am trying to say is that I think the copyright must be based on the principle and not on the quality or type of performance. The moment money is received for dancing; the author of the dance steps should receive a royalty. This principle, I believe, applies to all arts.
Because of entrenched misconceptions, it has proven difficult to defend choreographers’ rights to authorship. It has become common to question whether choreographers are actually authors. The most remarked upon recent example was Beyoncé’s 2011 video “Countdown,” which contained strikingly similar choreography, costumes, and set designs to Anna Teresa De Keersmaeker’s filmed dances “Rosas Danst Rosas” and “Achterland.” Alastair Macaulay, head dance critic for the New York Times, chimed in with an article entitled “In Dance, Borrowing is a Tradition.” The condemnable article used the history of ballet to argue that there can be no such a thing as authorship in dance, since all choreographers and dancers have historically taken steps from one another. He concluded that all the fuss about this plagiarism was “peanuts” and, therefore, ultimately dismissible. He went as far as to question the originality of Keersmaeker’s choreography, while complimenting the way in which Beyoncé “has chosen to fill the screen” in a more intense way. Attitudes like Macauley’s contribute to the depreciation of modern dance in the public eye and to the confusion of important issues regarding dance artists’ rights to authorship. Furthermore, against other ill-informed popular conversations that added to the distortion of the scandal, the “Countdown” video was not a compliment to Keersmaeker, it did not make her or her work more popular or appreciated, and it was not an homage. In fact, by the music industry standards, it would fall in the category of federal offense.
There has been no public resolution regarding the scandal, but there are rumors that Keersmaeker was compensated by Sony in a private arrangement. The matter did not reach the courts in the United States, so Beyoncé and Sony were not accused of copyright infringement. Rather than establishing a precedent to prevent such plagiarism in the future, the incident was resolved in private, resulting in a missed opportunity to affirm the validity of copyrighting choreography for future generations.
Keersmaeker’s company had a performance season at the Brooklyn Academy of Music (BAM) in October 2013 and she also gave a talk where several clips of her work were shown, including “Remix,” which featured a video rendering of “Rosas Danst Rosas” performed by BAM employees. Keersmaeker explained that for the 30th anniversary of this work, she invited the public to make their own homemade video versions, for which she created an instructional video that she posted online for all to learn the choreography from her instructions.
I stopped Keersmaeker in the lobby before the show at BAM and asked her why she didn’t sue Sony and if she would consider making the settlement public in light of the challenging copyright issues the dance world faces. She wouldn’t comment, except for saying that, “The matter doesn’t deserve any more attention.” When I stressed the connection between the choreographer’s right to authorship and an absence of industry and infrastructure to support the work of dance artists, she replied: “It is written in the DNA of what we do,” which I understood to mean that we all do it for the love of the work because we know there is no money in dance. Perhaps this points to a difference between her generation and cultural context, and mine. The years of well-funded dance companies such as hers appear to be coming to a close, even in Europe. Dance artists will be left to strive in a free-market economy, where contrary to what most of the art establishment realizes, the commercial arts and fine arts are increasingly interacting and dependent on one another, and the commercial creative markets, in which I also work, are gaining more terrain. These commercial interests are attuned to the idea that dance is worthless because they profit from that discounted value. In addition, the “works made for hire” loophole of the copyright law, which gives companies the ability to claim the rights to authorship of artists on the basis of employment, makes the protection of choreographers’ rights even more tenuous. How will we ensure that the value contributed to society by dance artists will be reinvested in dance research and practices, communities and infrastructures, as the copyright law ought to protect?
While I am a great admirer of Keersmaeker’s work, I disagree with her assessment—that the DNA of dance has nothing to do with its poverty or inability to protect its value, and particularly not in this cultural context. Rather, it is in the DNA of our economic and political systems to maintain the status quo and to use the copyright law to protect the interests of big corporations over the interests of artists, inventors, and creators who often do the research and provide content at their own expense. Furthermore, when it comes time to defend such authorship, the imbalance of power makes it a hopeless task for artists to defend their rights in court without the resources to fight aggressive lawsuits against well-represented, billion-dollar corporations like Sony.
Choreographer Susan Marshall recently released a video called “Stop” on the Internet to accompany her live work “Play/pause.” In the New York Times article “Tiptoeing Around the Music Video” published on November 15, Brian Seibert describes Marshall’s video as carrying “intentional resemblances and differences to Beyoncé’s “Single Ladies” music video,” and adds that “‘Stop’ could be considered a retaliatory aid, a show of solidarity [to Keersmaeker].” The unsettled dispute, which has entered the dance community’s collective unconscious keeps resurfacing, as it symbolizes an important unrealized benchmark: escorting the establishment of choreographic rights in the books of law to its enforcement in practice.
A man who was accompanying Keersmaeker at BAM, and who I was not introduced to, pointed out for me that her “Remix” concept had been her response to the Beyoncé scandal. “Just give it away to everyone!” he said. The impetus of giving the work away for free or even copying back, as a response to plagiarism, fits well in today’s popular free information-sharing paradigm. The rhetoric of open source and sharing has made copyright concerns passé. Jaron Lanier, a computer scientist who spoke at the New York Public Library on October 10th proposed that sharing has lost its meaning. His point was that sharing online today more often means giving a computer server owned by a big corporation your content for free so that they can use it to spy on you and sell you stuff. What might look like an open-source concept and horizontal sharing of information is, in fact, more like a pyramid scheme. Those companies encourage a culture of sharing because it makes them money, and we reproduce this behavior with an idealization and embodiment of these perverse sharing infrastructures. Giving things away or sharing is no alternative to being able to protect authorship or being entitled to your rights in equal measure to other authors, such as Beyoncé.
The fact is that dance is boosting the music industry and many other industries with tremendous, off-the-books marketing value. The “Countdown” music video has over 53,494,847 views on YouTube, which generated over $100,000 alone. More than eight million copies of the album Four, which features “Countdown,” have been sold worldwide, generating gross revenues of approximately $100 million The “Countdown” video was nominated for Best Choreography at the MTV Music Video Awards. As an after thought, a credit to Keersmaeker for choreography, alongside the other choreographers, was added on the MTV Awards website. Perhaps well intended, the misleading gesture contributes to expunging the fact that content was lifted from the work of an iconic choreographer without her prior consent.
The “Gangnam Style” video is another example of dance content that has brought enormous marketing value and viral appeal to a product, in this case the “Gangnam Style” song. Again, the choreographers who worked on the video were not remunerated in proportion to its success. Instead, they were paid an hourly wage as employees of the music label, and they were not publically credited for their work. Production teams for music videos made in Western markets are usually credited, but Psy was quite vague in public comments about his production team. He elusively often credited himself for the choreography, the rights for which are owned by YG Entertainment. A lot of work by dance professionals went into creating the catchy choreography that galloped around the globe, as was made clear in a New York Times interview where Psy himself said, “I studied hard to find something new. I spent like a month to find the horse dance. We are just at the studio, me and my choreographers, we are spending like 30 nights and we are thinking, what is my next dance move?”
What if that horse dance was actually monetized? How much would the choreography itself be worth? The YouTube revenues alone were over $3 million. In addition, the choreography was performed at live concerts, on national television, and on the Internet, for which revenues are comparable to the usage rights paid for a song. From a branding or experiential marketing perspective, one could hypothesize that it might be worth billions of dollars to get a third of the planet not only to be exposed to a brand, but to participate, to do something in relation to a product. Might it be of interest to re-examine the copyright law for choreographic works as the basis upon which to develop a newly flourishing dance industry?
When I watch the “Remix” edit of all the contributors who made their own videos, it inspires a vision of dance as a gift to all which can’t be priced, that is both invaluable and free, as all arts can inspire. “Rosas Danst Rosas,” which could not have been created without years of dance practice and research, lends itself so well to a modular recombination of steps that it’s as if it was created with this remix idea in mind. Certainly, should Beyoncé not have used that choreography for her music video, Keersmaeker may never have had her remix idea, which casts her work into new dimensions, and perhaps the dance community might not have responded to Keersmaeker with such passion and solidarity. While it is undeniable that creation, inspiration, and culture are a collective act, our social protocol, also a collective act, has devised rules that were intended to support creative efforts in an equitable way, not only the efforts of the ones who have the advantage. In our impetus of sharing culture, we must not confuse the existence of a larger collective act of culture with the collective act of consensus that defines justice within it, and which we devised to ensure that this sharing of culture doesn’t occur at the expense of the disadvantaged party and to the benefit of the other. As DeMille clearly stated over 60 years ago, what choreographers want is not protection against the performance of our dances, but of our work for pay, which should apply equally to all arts. I think it is time that we put an end to the discrimination that exists against dance artists in the courts of law, the media, and educational and arts institutions.
*DeMille, Agnes George. Comments and views submitted to the copyright office on copyright in choreographic works, prepared for the subcommittee on patents, trademarks, second session pursuant to S. Res. 240 Studies 26 – 28. Copyright in Choreographic Works, printed for the use of the Committee on the Judiciary, U.S. Government Printing Office Washington, 1961.