More on online dance-video collections, and why the likes of the Balanchine Trust might need to shut them down...[Wait: No they needn't. Breaking News from real Lawyer]

I agree that the questions about what and who the copyrighting etc. serves is a complex issue without clear cut answers on either side, but the benefits of what serves the artform itself do not necessarily always trickle down to the specific artist who deserves those benefits.

Just my 2 cents. Nice post, by the way.

Jim

Just to add to the resources in this discussion... here is a VIDEO that goes into detail and answers questions regarding The Dance Heritage Coalition's published statement "Best Practices in Fair Use of Dance-Related Materials" including it's history and interpretation. Speakers: Professor of Law Peter Jaszi, Jacob's Pillow Director of Preservation Norton Owen and American Dance Festival Archivist Dean Jeffrey. Moderated by Jacob's Pillow Scholar-in-Residence Philip Szporer.

Produced by Jacob's Pillow Dance available via FORA.tv.

http://fora.tv/2009/07/31/Fair_Is_Fair_Copyright_Act_and_the_Fair_Use_Doctrine

[apollinaire responds} Thanks so much! I'm sure this will prove useful to people.

The 95% number is based on my conversations with many, many dance companies. I based that number on the percentage of choreographers who lack notated works (which is all but a small handful) and/or decent quality video from which a work can be reproduced. Of course, one good court case, and that 95% number can easily become 0%.

The full answer is much more nuanced, and is based in large part on the lack of case law and a gigantic gray area encompassing fixation (and the second half -"and from which the work can be perceived, reproduced or otherwise communicated, either directly or indirectly, or with the aid of a machine or device") of choreographed works. I would refer you back to the link I mentioned in my initial response to this thread, particularly sections D and E. Although the article is 15 years old (as Apollinaire mentioned) there are only a handful of cases that have taken place since then, with minimal progress.

Basically, it's a mess.

I'm curious. Where did you get the info that "95% of companies don't copyright their work"? Seems a very high number...

[Apollinaire responds]
Same place as I got the other info: from Marc Kirshner. It doesn't seem high to me--not if you count "company" as any group assembled to produce a dance. I've never encountered the copyright sign south of 23rd street--at DTW, Danspace, PS 122, The Kitchen, etc. But maybe they're simply not mentioning it.....

Glad to have the clarification on the abandonment issue.

That being said, it would still be an unfair assumption, had my understanding been correct, that obligation was the Balanchine Trust's big excuse, unless they have made some explicit statement to that fact. It is also an unfair assumption that the Balanchine Trust was the reason that Ketinoa's channel came down. Given that Ketinoa had 1300 clips, most, if not all of which, they clearly had no permission to share, it is a safer assumption that they were recognized by YouTube for what they were... a pirate.

Take the Balanchine choreography out of the mix. What about the music rights? The dancers performances? The directors? Within each dance performance, there can be a dozen different types of rights holders. Is it appropriate that all of these rights holders should be stepped on? Behind every video clip on Ketinoa's channel was series of contracts and negotiations that required a significant expenditure of financial and human resources. Making work available for new digital platforms often requires an additional series of contracts and negotiations. If you owned the music rights, how would you feel if work you licensed to a choreographer under specific conditions was pirated in this fashion? My guess is that you would feel reluctant to offer the same licensing consideration the second time around, and the last thing the field needs is a greater separation between music rights owners and choreographers.

Also, it should be acknowledged that the Balanchine Trust, as does every choreographer and creator of art, has the fundamental right to protect their creation, regardless of whether or not it "makes sense". If the Balanchine Trust's rights aren't going to be respected, what kind of message does that send to the new generation of choreographic geniuses who are creating work and trying to survive in the field today?

[Apollinaire responds]
Marc,
Thanks for the questions. I do think they make clear the sort of morass copyright laws put severely underfunded artists in, if every time they put a video up, they have to consider everyone's intellectual property rights, including the dancers: It would be like a writer having to consider the "rights" of the words.

In my experience, artists want to be paid for the live performance, for creating, but if everything has to be parceled out as you say, then the gateway to those live performances--which is often how YouTube functions--will be utterly lost, which defeats the choreographers.

As for the message it sends to the next set of choreographic geniuses: They probably care more to get their work out there so it can affect future generations than to watch over it like a hawk. The very way you pose the questions--on one hand "pirates," on the other hand "owners"-- is antithetical to artistic creation. (See my earlier post: http://www.artsjournal.com/foot/2009/10/what_would_balanchine_have_tho.html) But I can see why this way of putting it appeals to you, given you're in the position of advocating that companies put their work on video so you can distribute it and help them (and you) earn some money.

I would be interested to hear from choreographers and companies: How do you feel about clips on YouTube? Good or bad? and what kind of clips?

Thanks for writing,
Apollinaire

1,2.....cha cha cha........hey that little extra hop is my copyrighted work....don't hop or you'll owe me a royalty.

One quick elaboration (also a caveat - I'm not an attorney, so nothing I say should be considered legal advice):

The ambiguity as far as what is copyrightable (Is the choreography the steps or the movement between the steps?) comes from one of the few judicial opinions on the subject. While looking to dig up the specific case, I came across this fairly helpful link:

http://www.csulb.edu/~jvancamp/copyrigh.html

Definitely worth a read for those interested in the topic.

[Apollinaire responds]: Thanks, Marc, I'll give it a read when I have a chance, though I think it's worth noting that the article was written in the mid-'90s, before the explosion of YouTube and the like.