By Elizabeth F. Jackson
Copyright law was late to recognize dance. Until the mid-1970s, there was no copyright protection for choreography, unless you could somehow convince the Copyright Office that your piece was a narrative “dramatic work,” as Hanya Holm did for her choreography for Kiss Me, Kate. When Congress added “choreographic works” to the Copyright Act in 1976, it seemed to give our art some credibility and respect. But copyright protection has been both a boon and curse: A boon, if you are able to protect your work and receive income through license agreements; a curse when it becomes an obstacle to getting your work seen and studied when it needs to be.
The fair use doctrine is how we allow the public to acknowledge our artistry: writing about dance in academic circles, exhibiting it in museums, preserving dance’s greatest legacies in archives. Sometime after dance became copyrightable,the prevailing opinion in the dance world was that copyright protection was absolute. It’s not. The Copyright Act protects fair uses of copyrighted works, especially where the use fulfills significant educational, cultural, or civic needs. Just like the critic who quotes from a movie to warn us how dreadful it is and the scholar who cites the scholars who came before her, fair use is how we prevent copyright law from destroying our fundamental freedom of speech.
The Fear of Fair Use
And yet, there seems to be a particular mistrust and even fear of fair use in the dance community—that it might give others a right to steal your choreography—but that’s just not true. The fair use doctrine is how we guarantee that museums and libraries, teachers and scholars, and others have access to our works and can meet their critical educational and cultural missions. Fair use means that cultural and educational institutions are able to celebrate each particular choreographer’s contribution to the art form, contextualizing each piece of choreography in the history of dance, and educating those who might not know how dance developed into what it is today. Fair users are not making money off of your choreography; they are putting it in their museum exhibits and on their dance history course syllabi, making sure it's a part of our cultural fabric.
Now, the Copyright Act tells us that a fair use is determined by four factors: why you used the copyrighted work, how much you used, what the nature of the copyrighted work is, and how the use will affect the market for the copyrighted work. But in the last decade, these factors have melted away into one primary consideration: transformativeness. How did you transform the copyrighted work? A dance company that performs someone else’s copyrighted work does not transform the work. A teacher, however, who shows a video of Martha Graham’s “Lamentation” to compare it with a current modern dance piece and to lead a discussion on the evolution of modern dance: that’s the transformativeness we’re talking about.
The Supreme Court coined “transformativeness” in a famous lawsuit against the rap group 2 Live Crew, which had created a parody of Roy Orbison’s song “Pretty Woman” (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). The group 2 Live Crew changed the lyrics to describe more realistic women, mocking Orbison’s original lyrics, and this kind of parody could be a transformative use. In 2006, the Second Circuit provided more guidance on what transformative means (Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605 (2nd Cir. 2006)). A company created a coffee-table book on the Grateful Dead and used seven copyrighted Grateful Dead concert posters in the book. The company had incorporated these concert posters into a timeline of the Grateful Dead, enhanced with descriptions, pictures, and mementos of the time. The original purpose of the poster art—to sell concert tickets and perhaps decorate a Deadhead’s bedroom—was transformed into a commemoration of an iconic band, and the court found fair use.
Use What You Need and No More
The more transformative a use is—the more value added, the more the original work is entirely recast in a new context—the less important the other fair use factors are. These other factors are not ignored; they’re just affected by the transformativeness. For example, the amount you may take of the copyrighted work depends on the purpose. I’ve heard some say that it must be less than 3 minutes of the copyrighted work, but that’s just wrong. There is no “right amount” you can or cannot use. If your goal is to parody a Roy Orbison song, you may need to use the whole work so that listeners understand the comparison between the work being parodied and the new work. If you are creating a coffee-table book chronicling the life of a band, you need to represent the concert posters accurately to create the appropriate historical context.
Codes of Best Practices
Because of the fear that seems to still surround fair use, many arts and educational communities have started to create guidelines to allay fears and explain how fair use may be used appropriately. The Society for Cinema and Media Studies (SCMS) created a statement on the fair use of using film stills in scholarly works. Educators followed with a Best Practices Code for incorporating media into the classroom. Then in 2009 the Dance Heritage Coalition (DHC) created its own Statement of Best Practices in Fair Use ofDance-Related Materials. The DHC uses the fair use principle to help libraries digitize old videos that risk being lost, support classroom use of dance materials, and display works in public exhibits. For example, when DHC creates an exhibition—such as its “America’s Irreplaceable Dance Treasures: The First 100” traveling exhibition—copyrighted works originally used as publicity or entertainment are transformed into teaching materials for exhibit visitors to show the choreography’s place in the development of dance and its historical context.
What Fair Use Can Do for You
In fact, fair use can work for you. Just recently, the Jacob’s Pillow Dance Festival wanted to memorialize and celebrate the outstanding work that has been performed on its stages. The result was an innovative and interactive website that plays videos of pieces performed at the Jacob’s Pillow Dance Festival over the course of 80 years. This online resource provides access to works that were otherwise only viewable in the Pillow Archives and allows decades-old dances to be compared to recent ones. Rather than tracking down the heirs to these works and attempting to negotiate some kind of contract, the Virtual Pillow team simply notifies copyright owners on their inclusion in this particular resource and makes these works accessible to students, historians, and dance-lovers alike.
And in 2006, Nick Doob and Linda Atkinson used the fair use doctrine to create a documentary about the renowned modern dancers Carmen de Lavallade and Geoffrey Holder. Doob and Atkinson used clips from the artists’ 60-plus-year careers to detail this husband-and-wife team’s triumphs as dancers, choreographers, producers, artists, and designers. Fair use allowed Doob and Atkinson to bring their story alive, providing real footage, to educate today’s dancers about their influential legacies.
To use fair use for your own educational purposes is not as hard as it seems. Fair use is indeed a flexible doctrine, needing to be applied on a case-by-case basis. But it is still appropriate, indeed encouraged, for you to rely on general principles—created from legal standards and cultural norms within the community.
Is Your Use Fair?
You must first consider the transformativeness of your use. What was the original purpose of the copyrighted work and how did you repurpose it? Are you using it for scholarship? To teach? To create engaging public programming? Then you must ask: what have you added to the work? The more commentary and context or other added value you can give the original item, the better your fair use argument. And lastly, how much of the copyrighted work must you use to achieve this purpose? Remember, there is no magic number. Use what you need—no more and no less.
A Caveat About Contracts
A last warning before you start enjoying your newfound rights: watch out for signing contracts that might trump your ability to be a fair user. If you are a dance company that signs contracts with artists that restrict how you can use publicity photos or videos, you might want to reexamine your contract language. If you are a library that has outdated acquisition agreements that restrict access to a collection of works, fair use might not be able to override these contracts. Make sure you don’t give away your right to transform copyrighted works so that you may offer access and education to a new group of dance students and the general public.
Elizabeth (Liz) Jackson currently serves as legal counsel for the Dance Heritage Coalition. She answers questions on fair use and copyright law. Jackson previously worked in the Glushko-Samuelson Intellectual Property Law Clinic under Peter Jaszi, Victoria Phillips, and Nabila Isa-Odidi. She has recently published two articles on copyright issues: The Copyright Office’s Protection of Fair Uses Under the DMCA: Why the Rulemaking Proceedings Might be Unsustainable and Solutions for their Survival in the Journal of the Copyright Society of the U.S.A. and A Look at the Supreme Court Justices Individual Biases Toward Copyright Law: Prediction and Reflection on the Golan v. Holder Decision in the American University Intellectual Property Law Brief.
While in law school, Liz worked in the General Counsel’s office of Hard Rock Café International, Inc., the U.S. Attorney’s Office for the District of Columbia, and the Alliance of Artists and Recording Companies. She has her B.A. in English from Vanderbilt University, M.A. in Literature from Florida State University, and J.D. from American University. Liz has danced nearly her whole life, including soloist roles in regional ballet performances and as co-chair of Momentum Dance Group at Vanderbilt University.
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