Wednesday, November 4, 2009

Intellectual Property Rights in a Dance Video

I have a fabulous exercise/dance instructor named Max. After class the other day, she told me that she was going to make her own exercise video, and asked me what would it take to (a) protect her work and (b) get the rights she needs to make the work. Her questions got me thinking – intellectual property rights in her work have a number of legal layers. Also, the music industry is notoriously difficult to navigate in trying to collect licenses to rights held by others. The below is a short summary of her rights, the rights she needs to license and the first steps needed to get them.

There are four potentially copyrightable works in the exercise video:

First, dance and exercise videos involve sequenced physical movements or "choreography."

Second, those physical movements are performed in a moment in time, and recorded on a video medium (such as digital imaging, or film in the 'olden' days).

Third, the dance videos involve the music – the tune and the lyrics – that are created by someone.

Fourth, that music is then performed – the sounds of the music are made - by others.

Each of the 4 pieces above that comprise the video creation may be separate copyrightable works in which Max may own the rights, or need to license the rights from others.

As for the choreography, itself, it can be Max's intellectual property if it meets the legal requirements.

Original. U.S. Copyright Law requires that a work be an "original work of authorship" in order to be eligible for copyright protection. The classic test of originality for a copyrighted is not novelty, but "whether the production is the result of independent labor." Even if Max was influenced by the choreography of others – albeit classical dance, salsa or Caribbean dance – as long as the work was not copied and Max designed her own combination of steps and movements, Max's choreography is new and original.

Fixed in a Tangible Medium of Expression. Choreographic works may be fixed through film, videotape, or any of several notational systems. Notably, fixation through film or videotape records the complete choreography, however it mixes one copyrightable work - the dance choreography (the design of the dance) with another copyrightable work - the performance (that particular time the choreography came to life). As a legal purist, these works should be considered separately, and therefore the notational system would best capture the choreographic work, and the video would best capture the performance. But, from Max's point of view, focused on commercial realities, the important thing is that the video recording does "fix" the work "in a tangible medium of expression."

Therefore, Max's video is protectable under the law as a copyrighted work.

Well, that's good, but does she have the right to distribute it with music (with an audio recording)? That depends on whether Max has or gets all the rights she needs to the music (the tune and the lyrics), and to the performance by the musicians who play the music.

The Music. The music in and of itself is a copyrighted work. The creator of the sequence of notes and lyrics owns the intellectual property rights in the music. So, for example, the song "Thriller" was written by Rod Temperton, and he held the original rights in the music.

The Recording. The recording of the music also is a copyrighted work. Michael Jackson's audio performance and recording of the Temperton song "Thriller" is a separate copyrightable work.

To get the rights to distribute the music and recording, Max can write her own music and perform it – but I suspect this isn't very practical. She can also write her own music and hire someone else to perform it, and lock in the rights to the recording contractually. Most practically, she can get the rights to use music written and performed by others.

These rights can be licensed directly from the creator of each the music and the performers, or through a record company who controls the rights, in the form of a master use and synchronization license. The master use license will give her (a) a license to the music – the tune and lyrics, (b) a license to redistribute the performance by the musicians, and (c) the right to redistribute in audio-visual format.

She also needs a videogram license from the record company or music publisher. There are more narrow licenses, but because she wants to release her video for sale to the public, she must also get this special videogram license.

Bottom line – the licensing of rights to redistribute music are very complex, and there may be more than one licensor who holds the rights needed. There are companies that provide music clearance services – they know who to go to to get the right rights. That should be her first stop.

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