Joe Jencik, a famous Czech dancer and choreographer, once said: “There are many different jobs, but dancing is a mission, where time is nothing, and the content is everything.” (Černá Lucie, POROVNÁNÍ OBORŮ: Taneční umění, accessed on 29 September 2017). Contemporary dance keeps inventing new forms and pushing the boundaries of the tried and tested forms. Even though the movements that may be performed by a human body are clearly limited.
This may or may not be the reason that dancing does not enjoy a prominent position in relation to copyright. It is developing its place in the copyright debate only gradually. There are interesting copyright cases from time to time involving choreography copyright infringement, and if famous people are involved, the media also take note.
In her 2011 Countdown music video, Beyoncé Knowles, an American pop singer, substantially used the choreography created by Anna Teresa de Keersmaeker, a Belgian dancer and choreographer, who recorded her choreographies and made them available for download online. Beyoncé Knowles found the videos and used parts of her choreography.
The interesting, but at the same time, controversial aspect of dancing is the fact that there is no other way of recording it than a video. There are no written scripts for choreography. They exist only in theory, but their use is far from clear (e.g. the “script dancing” by Rudolf von Laban from the 1920s).
Recordings of dancing choreography offer themselves to be made available (these days mostly online). It is undoubtedly beneficial and convenient for the artist: the dance moves may be learnt again at any time in the future, but the choreographer also increases his or her prestige and professional status, and gets a chance for feedback. On the other hand, this creates a risk of plagiarism.
To enjoy copyright protection under Czech law, the copyrighted work must be expressed in a form that can be perceived objectively. Such a form need not involve its recording on a data medium such as a video recording; any communication of the work (as ephemeral as it may be) that may be perceived by an individual (seen) is enough (e.g. performing the dance to audience). As soon as the dance has been performed, this condition is met. The issue of providing evidence is irrelevant for the copyright protection as such, but becomes extremely relevant in practice. It is rather difficult to use eye witness of the performance to prove that the work has been performed (i.e. expressed in a form that may be perceived objectively, which gave rise to its creation in formal terms). It is much easier to make a recording of the performance, as amateurish or simple as it may be.
Interestingly, a copyrighted work under Czech law or German law is created even if it has not been recorded on a tangible medium. The opposite applies in France where the tangible medium is one of the prerequisites of copyright protection.
To make the situation even more complicated, a number of obstacles must be overcome in practice to make a recording of a dance performance lawfully accessible. The recording will usually capture not only the choreography, but usually another copyrighted work (e.g. a special dancing costume, incidental music, stage design, lighting design) and the performance of the dancer. Moreover, if the choreographer provides the dancers with substantial creative leeway, the dancer may become co-authors of the choreography through their creative contribution. Not only does the licensing consent need to be obtained from all the persons involved, this may also involve increased costs for the choreographer (if all the persons involved ask for a fee for granting the consent to show the video recording online).
DILIA, a Czech copyright collective society, is, in formal terms, responsible for the collective management with respect to choreographic works. In practice, this only applies to audiovisual media, i.e. film and TV, as theatre performances are exempt from collective management. In other words, a choreographer who is only active in the area of live performances not shown on the screen, has no copyright collective society. Such choreographers may exercise the rights directly, may be represented by one of the arts agencies or may hire their own agent, or a combination of these options. The same applies to other professions involved in the theatre.
The dancing art does not enjoy decent remuneration in the Czech Republic, and the public support is rather limited. Only choreographers with vast international experience may ask for adequate remuneration. That is why litigation between choreographers either in the Czech Republic or abroad is extremely rare. In fact, even the Beyoncé Knowles case had no outcome (the court noted that it cannot be said with certainty that the excerpts from the dancing choreography would enjoy copyright protection of their own).