It might be you—or it might not. Protect your rights by learning the in and outs of intellectual property law.
by Jennifer Kaplan
Do you know where your choreography is? Who owns it? Who has the right to change it or perform it? Who will receive residuals if, in some heavenly stroke of luck, a dancemaker hits the jackpot and a work becomes a Hollywood hit?
In the dance studio industry, contracts outlining copyright and ownership of artistic output are few and far between. Many studio directors rely on friendly, informal employment agreements with their full-time and part-time teachers and guest artists. Most of the time a handshake between a studio owner and a teacher or choreographer seals the employment deal for dance pieces created for recitals, community performances, and competition teams.
And most of the time a handshake is enough. Intellectual property lawyer Julia Haye of Greenberg Glusker LLP in Los Angeles explains that copyright confers ownership of the work, and among the rights granted to a copyright owner is the exclusive right “to reproduce and publicly perform” the work—and reap any monetary award that might arise from that performance.
She says it might be prudent for studio owners to secure written agreements on ownership, copyright (if applicable), and other factors, with any person who produces choreography for the studio. Full dance works can be copyrighted, but only if they are “fixed in a tangible medium of expression,” which means they are recorded or notated and can be replicated from those documentations. Concepts or ideas, or a few dance steps, phrases, or common traditional steps, cannot be copyrighted. (You can’t copyright a kick ball change, for example.)
Intellectual property lawyer Julia Haye says copyrights of dances created as works-for-hire are owned by the person or entity who commissioned the work—not the artist.
For the great majority of private studios and the dance industry as a whole, the most common principle for ascertaining who owns choreography is the principle of “work-for-hire,” according to Section 101 of the U.S. Copyright Act of 1976.
Haye says copyrights of dances created as works-for-hire are owned by the person or entity who commissioned the work—not the artist. “In a nutshell, the most standard way a work is created as a work-for-hire is when it’s created by an employee in the ordinary course of employment,” she says. “Then the copyright in the work would be owned by the employer, not the individual employee who created it.”
Many factors are taken into consideration when legally deciding whether or not someone is an employee or contractor. Haye says that if a creator has a regular, set schedule and is on payroll, those two factors weigh in favor of classifying the creator as a regular employee.
Likewise, there are many criteria for determining whether or not someone is an independent contractor. Hiring an outside choreographer for a limited engagement weighs in favor of considering the choreographer as an independent contractor. The studio owner should stipulate that any choreography created by this person is work-for-hire.
Haye says, “The best protection to have as owner of the studio is a written agreement saying, ‘I’m hiring you to come in and set this piece. It’s a work-for-hire. I’m going to own everything associated with this piece, including the copyright in the work, and I have the right to control all aspects of the piece and the performance of it.’ ” Haye advises that these agreements assigning the copyright in a dance work must be in writing to be effective.
But what happens if the choreographer sets a work created for one studio on students at a different studio? Aviana Sanchez, owner of Avi’s Dance Project in Corona, California, has seen choreography from one competition team being performed by another team. Rory Freeman, an independent choreographer, master teacher, and competition judge, has heard about this happening without the original studio owner’s knowledge or credit.
When previously hired as guest choreographers, neither Freeman nor Sanchez signed agreements with studio owners regarding dance ownership. As a studio owner, Sanchez says she hired friends and colleagues under verbal agreements and trusted her teachers and guest artists to “do the right thing.” After thinking about the subject, she says she plans to draft a contract for staff and guest artists regarding choreography ownership.
Haye, a mother of competition dancers and a former competition dancer herself, notes that in the great majority of studio-based cases regarding who owns choreography, the stakes aren’t high enough to pursue full-blown legal action. If a studio owner has a signed a work-for-hire agreement, a simple letter reminding the choreographer that he or she signed over rights to the work is usually enough to stop infringement (such as setting the work on another studio’s students) and enforce the studio owner’s rights in the work.
It’s impractical for most dance studio owners to pursue legal action over copyright issues, Haye says, because the costs of pursuing legal action often greatly outweigh the potential financial recovery. “One of the problems we have with dance, in particular, is that it is essentially a hand-to-mouth industry,” she says. “Everyone’s taking all the jobs they can get, but they aren’t thinking about their work as a business.”
Haye encourages studio owners to “take some small steps and make a relatively minor investment in legal fees to prepare good legal forms, which can be used to protect your rights and interests in the works created by in-house and outside choreographers for your studio.”
Choreographers and teachers, in turn, need to speak up and ask for basic protections. “Make sure that your expectations are clear regarding the rights you are granting a studio,” she says. “That can get you a lot of the way there, but you need to be aware of what to ask.”
Haye emphasizes that communication is key between studio owners or hiring managers and choreographers. “That way,” she says, “everyone is on the same page regarding each side’s respective rights and expectations.”
Some choreographers will allow extensive changes; others may not want their name associated with a work if what’s performed differs too much from the original piece.
Changing the choreography
Often a studio director or teacher must make changes to a dance after the choreographer has moved on to his or her next gig. Dancers may get injured or be dismissed, or a step or sequence might not work and therefore need modification. Haye suggests the parties outline a process for making changes before the job is concluded and the choreographer has left. Some choreographers will allow extensive changes; others may not want their name associated with a work if what’s performed differs too much from the original piece.
Sanchez, who worked as a freelance teacher and choreographer prior to opening her studio, is pragmatic about changes. “When you go in and set pieces, people make changes,” she says. “It has to be that way. When I walk away, it’s on them to either keep it or change it and reset it.”
Rhode Island native Freeman, who competed on America’s Got Talent, is more protective of his artistic vision when it comes to changes. “When I do a work, I tell the dance studio that it is obviously now their piece and I would like them to give their own authentic flavor to the choreography,” he says. Still, if changes are necessary, he’d like to be contacted first.
Live streaming of competitions allows choreographers to keep track of what’s going on. “One time I noticed something was completely changed to something I definitely wouldn’t have put in there. That was upsetting for me,” says Freeman, who nevertheless did not contact the studio.
While Haye says pursuing legal action in such a case would be impractical, studio owners and choreographers must communicate what’s important to them—such as prior approval for changes—to preserve a positive working relationship.
Agreements with artists
CityDance School and Conservatory in Bethesda and Rockville, Maryland, has 150 high-level conservatory students and 900 students in other programs. Artistic director Lorraine Audeoud Spiegler, the granddaughter of a lawyer, will not proceed with a hired choreographer without a fully executed contract that stipulates how long a work can remain in the CityDance repertory; whether other companies or studios can perform the work during and after the licensing period; and, if such performances are allowed, where the work can be performed.
“We’ve done our homework,” Spiegler says. “Our contracts state that we have the rights to use the work for a certain period of time and that those pieces can’t be performed on other young dancers and youth companies in a ‘competitive environment.’ ”
The contract gives school choreographer-in-residence Robert Priore, who also has works in the repertory of international touring troupe Company E, Dayton Contemporary Dance Company, Codanza (from Cuba), and his own fledgling company, some flexibility outside of the studio and competition world.
Priore creates four signature works for CityDance Conservatory students each year. While these works cannot be set on other studios, he can set material, sections, or even the entire work on his professional company or another company.
In addition, he choreographs up to a dozen senior solos for graduating dancers each year. These pieces highlight the dancers’ individual skills and personalities, Spiegler says, and are often used for college auditions, competitions, and other performing opportunities. The dancers (and their parents) must inform the director before any performance (such as a school talent show). Once senior year is over, they cannot dance the piece again without consulting CityDance.
Because Spiegler and Priore have a long-term working relationship, they will talk over any necessary changes and work together with the student dancer. When Priore is on tour and cannot be present for changes, he says, he trusts his artistic director’s judgment to make changes.
Spiegler and her staff educate students and parents about respecting an artist’s work by restricting social media posts of videos and photos. Spiegler says, “This is a very crucial topic given our commitment to respecting the intellectual property of our teaching faculty and guest artists. We spend time explaining the importance of this stance to our students and parents. Sometimes it may seem like we’re being overly cautious in a world of pervasive social media, but we know it is important.”
Haye says social media “is helping to bring awareness to some of these issues and we are starting to understand that works are protected.”
How can studio owners protect the artistic integrity of the choreography they produce or purchase? Written agreements. “You can keep it very simple: a one-page agreement that protects you and ensures you own the results and proceeds of all the works created by both your in-house teachers and your guest choreographers,” Haye says.
How to register a work for copyright
To copyright a choreographic work, it must be “fixed” or put into a tangible form. The easiest way to do this is to make a recording of it on your phone or another device.
- To register choreography electronically, visit copyright.gov. The cost begins at $35 for a single application by a single author when the piece is not a work-for-hire. The site will lead you through the process of creating an account and uploading your video. The site also explains how you can register by U.S. mail and mail in a copy of the work for registration.
- After the work is registered, you can use the © symbol, the copyright holder’s name, and the year the piece was copyrighted to deter infringement, but it is not required.
- Intellectual property attorney Julia Haye of Greenberg Glusker LLP notes that choreography created in the dance studio environment is not usually registered, yet copyright registration can prevent a work from being restaged and monetized. An example might be if the choreography was picked up by a major music artist for a popular music video or was used in a successful video game.
- Haye says choreographers must get permission or pay for rights to use most musical scores if they are not original compositions made for the dance work. Therefore, even if you are using a piece by Tchaikovsky, the recorded performance is likely under copyright of the orchestra that performed it; thus, permissions must be acquired or residuals paid before proceeding.
Jennifer Kaplan has taught and lectured on dance at East Coast colleges and universities. She is working on a book on contemporary issues in choreography.