Copyright and Choreography

I’m rewatching a fun horror/comedy called John Dies At the End. It opens with a zombie variant on Theseus’ Paradox. The question posed in this paradox first posed by Plutarch is: If a ship gets damaged a little bit voyage by voyage and is gradually repaired so that every plank of wood is different from the original, is it the same ship?
Later in the movie, John casually asks, “When you hear a song playing on the radio, where’s the song?”
This article is going to be on the lengthy side, and it would only be longer if I connected all the dots. Instead, I’d like to give you some questions to think about and discuss with other performers and choreographers on the topic of copyright and fight choreography.

Dry Legal Stuff

The law is our attempt to encode ethics into rules that we actually enforce in society. I’ll talk below about our community’s customs and norms and different ideals about working as a creative artist in practical terms. But I’m going to start with the strict interpretation of the law.

Bob Tarantino wrote an article called “Copyright in Choreography in Canada” in which he succinctly describes how the Copyright Act works with regard to dance choreography. He wrote it in October 2011 when Beyoncé was accused of copying dance moves for a music video.

First off, it is important to note that choreography is clearly eligible for copyright protection. It is one of the listed types of “dramatic work” that qualifies and is not limited to dance or theatre.

Tarantino points out that there are two requirements for a determination that any work is copyrightable: originality and fixation. We’ll return to the originality requirement. With regard to the fixation requirement, there must be some way that the choreography was recorded, but that can be written, pictorial or filmed or otherwise.

He notes that there are very few cases that have ever been heard by Canadian courts. The case most often cited is Pastor v. Chen, in which a dance instructor sued a former student of his who was teaching the instructor’s dance sequences to other customers. However, a close reading shows that it was actually on the basis of the breach of a confidentiality agreement that the instructor won his argument, not copyright.

Tarantino points to an excellent 44-page report called “Choreography and Copyright” by Laurent Carrière for more information.

Carrière’s analysis clarifies the following points:

  • Simple routines and social dances are not protected by copyright in the United States, but the issue has not been resolved in Canada. Carrière calls it elitism that ballet, which is composed of individual positions and steps is protected, but original combinations of other dance moves in “East Texas Style Dancing” is not.
  • The issue of Authorship concerns giving credit for choreography, but the interesting case of giving credit for a modified work has not been tried.
  • Similarly, the moral right of Integrity concerns not modifying a licenced work, or associating it with a product that the author didn’t intend.
  • “The performance of these steps may greatly vary from one dancer to another, according to their own interpretation. Therefore the steps may be quite similar but their rendering by a dancer be so different that the copying choreography may be perceived as different from the copied one. It is submitted however that under the Copyright Act, it is not the performance of a work that is protected but rather the work itself.”
  • Appropriation before fixation would not be protected, such as when a choreographer is building a dance in rehearsals. However, the dancer who attends a rehearsal may be bound by a confidentiality agreement as in the Pastor case, even though copyright did not apply.

I recommend downloading Carrière’s PDF because it also includes a detailed section at the end about the history and practice of written dance notation that may be useful for “fixating” your own choreography.

Everyday Practical Copyright

Even if you have a reputation for great choreography and you think it hurts you that someone else has used your choreography to make themselves look better than they are, I think you sell yourself short to believe that you were injured.

One of the reasons you may feel injured is that another fight choreographer may be getting jobs that you think ought to be yours because their choreography IS yours. Remember that creative endeavours are not a meritocracy. It is highly unlikely that the producer who is considering hiring you has seen your work or your competitor’s. Even if they did, a live theatre performance is not something that they will recall perfectly enough to mention even one fight moment.

I argue that the sequence of moves is not why you’re being hired. Deciding between two fight directors who may use the same choreography, you bring your unique historical and artistic knowledge, communication skills with actors, eye for safety, expertise with specific styles, reputation, and so many other factors. In any of those ways, you differentiate yourself and get hired.

Being afraid of sharing your end result or your process leads to fewer learning opportunities for your classmates, leading to poor stage combat in the industry overall.

One of the issues in Vancouver is that there are only a few shows with exceptional stage combat, and audiences are content with barely passable fight choreography. This is exacerbated by the attitude that great techniques should be kept secret so that the great choreographer can remain above the competition. The effect of this is the opposite, however: audiences don’t demand great stage combat, so producers refuse to pay for it. If everyone shared great stage combat principles and choreography, then everyone gets better. This can lead to you having to keep improving and innovating to stay ahead of the competition. Which, in turn, is good for your personal development, good for the sub-industry of fight directors, and good for the local actors who train more, become safer, and deliver better performances in all their shows.

What is choreography but a sequence of moves? When approaching believable, historically accurate options with a specific weapon, you reduce the number of possible sequences. That’s not to say that you can’t recognize unique choreography and styles among different choreographers, but that you’re probably noting the unique moves, not the sequences of generic moves. I think we know from professional wrestling that we don’t care whether every performer uses the same generic moves, sometimes in the same order, but we immediately criticize a performer who copies a finishing or “signature” move. In your own fight choreography, look to create those unique moments.

If your work is truly unique and awesome, people will recognize it when it is stolen. If it’s impossible to tell that your choreography is uniquely yours, then it’s already generic and you have nothing worth protecting. So I wouldn’t stress out that that parry 2-parry 5-parry 7 sequence looked familiar. Look for entirely original physical expressions.

In gymnastics and figure skating, certain moves are named after the athlete who first performs them successfully. You can also try to create difficult combat moves so that copying your performance will be physically difficult.

If it sounds like I’m saying that it’s okay to copy sequences that seem generic, I am. However, try not to plagiarize or reuse other people’s choreography because you’re robbing yourself of your unique expression and a creative outlet.

If you want to work on your choreography with other stage combat students, be clear that you are working on it for a show, and they can expect to see it on stage. If they contribute their own suggestions, try to give them thanks in the credits, or mention the group.

If you’re the one who is helping another student with their choreography, and you know they’re going to be using it in a show, then don’t reuse it for your own shows out of professional courtesy.

When you have an abundance, you don’t feel the pinch of theft. Use your spare time to build choreography in your head and write it down for a later opportunity. If you try it in class, and someone puts it in a future show, you can feel good about teaching them, and know that you’ve got loads of notebooks full of even better choreography. Of course, the abundance of having plenty of well-paying gigs would also ease your mind about their theft of your idea.

I do sympathize. I think I have awesome choreography, and if I saw someone ripping me off, I would think they’re terrible for not inventing their own choreography. I also feel envy for those fight directors who land their jobs from their industry connections, having letters after their name, or their list of credits without having the talent or number of training hours to back it up. However that doesn’t change my first point: you’re not hired for your choreography. So, impress your next producer with great choreography after you get the job from a recommendation, a connection made at an industry party, a theatre workshop, self-published videos, or whatever advantage you can find that makes you valuable as an artist.


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