Copyright and Performance

April 17, 2009 6:37 AM

What sort of copyright protection do performers (burlesque, specifically, but any stage performance works) have? What about tribute acts?

I'm a member of a prominent burlesque messageboard based in the UK and there was some recent chat over Britain's Got Talent. One point of debate was over a contestant that performed a Dita von Teese tribute act, basically performing Dita's well-known routines (such as the giant martini glass).

Some of the posters, who are established British burlesque performers, cried foul as they felt that she was ripping off Dita. There were many questions about whether the Dita tribute was running afoul of Dita's copyright, which then led to questions about whether Dita had registered her performance routines.

As far as I understand, at least in the US, copyright is automatically assigned to the creator upon the creation of the work. Does this apply worldwide or are there significant differences in law?

Is the Dita tribute infringing Dita von Teese's copyright? Some people who knew the tribute artist came by and said that she came from the tribute artist industry, which functioned very differently from the burlesque industry (which has strong ethics about not copying other people's work). Does she need to get express permission from Dita to perform? As she is British, whose copyright law does she fall under?

What are some good resources for copyright law as it relates to performance? When can you say that someone's ripped you off and possibly take legal action? I've been seeing quite a bit of misinformation left and right, so I thought it'd be helpful to get some better information in the one spot.

posted by divabat to law & government (21 answers total)

Probably none, with respect to the act or routine itself. I am familiar with US law, but, on these issues, I think that it is relatively similar to UK law.

In most places, and certainly in the US, copyright is only available to concepts able to be "fixed in a tangible medium."* A burlesque routine itself, as opposed to expressions of it, is not capable of being fixed in a tangible medium. An idea is not able to be copyrighted. Of course, a pictorial (hubba hubba!) or written description of such a routine could be fixed in a tangible medium and would be subject to protection, but that protection would generally extend only to reproduction of that tangible representation, not to performing the routine itself. A burlesque routine is probably closest to a recipe in that regard. You can't realyl prevent someone else from copying it. (Which I personally think is a good thing, but I'll leave the editorializing out of this.)

Regardless of citizenship, most countries' copyright and other intellectual property laws address activity within their jurisdiction. So, if a concept is protected by intellectual property laws, the holder of that protection would be able to take action with respect to activity taking place within the jurisdiction where the intellectual property in question is protected/registered/etc.

The best claim against activity like this would probably be a trademark claim, but that would be pretty weak as well and I'm not sure if I see a way to recovery there.

Also, I'm not an burlesque expert, but I think that burlesque performers have been using giant martini glasses since long before Dita von Tesse has been alive.

* This link is not working for me right now, but I'm sure it will provide a more complete analysis of this issue.
posted by iknowizbirfmark at 7:06 AM on April 17, 2009

Choreography can be copyrighted, I know. But, as iknowizbirfmark says, it has to be put in a fixed medium for that to apply.
posted by Xoder at 7:19 AM on April 17, 2009

The question probably is, if choreography is copyrighted, what ability does the rightsholder have to prevent the choreography from being performed? There is probably some case law on this you (or someone here) can dig up. Best case scenario for a rightsholder is probably an interpretation that treats a copyrighted choreographed routine as being subject to performance copyrights, and I think that I can see that sort of analysis preventing an exact copy, or a mostly copied work. With music, there are all these tortured analyses of how many of the rhythm/notes/etc. are the same.

Bottom line, if there is a path towards protection of a choreographed routine, it is probably going to be very specific to the exact routine, and not going to extend to the concept of a pretty partially nude women in a oversize martini glass.

But these are all just conjecture based on some knowledge and experience. IANDVTL.
posted by iknowizbirfmark at 7:30 AM on April 17, 2009

This looks promising. For the US, you might as well just read the statutes.
posted by sinfony at 7:38 AM on April 17, 2009

that protection would generally extend only to reproduction of that tangible representation

This is not true. Public performance of "literary, musical, dramatic, and choreographic works" are exclusive rights of the copyright holders.
posted by grouse at 8:17 AM on April 17, 2009

I find it curious that musical works would considered "fixed" when recorded in audio form (not if and only if transcribed into a system of musical notation), and yet choreographed works would be considered "fixed" only in notation form and not when (say) recorded on video.
posted by onshi at 8:35 AM on April 17, 2009

Public performance of "literary, musical, dramatic, and choreographic works" are exclusive rights of the copyright holders.

You're right - sorry for the erroneous statement. That's what I get for doing it quick. What I meant to say was that I think that protection would generally extend only to a close reproduction of the choreographic work portrayed in the tangible representation. I do not think that the fact pattern described here easily lends itself to preventing someone from performing a burlesque routine in a large martini glass unless the performance is very close to the copyrighted expression of that routine. A little digging will probably turn up some directly applicable analysis on copyright issues in choreographic routines. I'm also not sure if a recorded performance of the routine would be considered an expression in a fixed medium of the routine itself, although I think that I could probably be convinced. Lots of interesting questions here.
posted by iknowizbirfmark at 8:36 AM on April 17, 2009

I find it curious that musical works would considered "fixed" when recorded in audio form (not if and only if transcribed into a system of musical notation), and yet choreographed works would be considered "fixed" only in notation form and not when (say) recorded on video.

That's because it's not true. A video recording certainly would count as a tangible medium.
posted by grouse at 8:46 AM on April 17, 2009

A video recording certainly would count as a tangible medium.

Sure, but who made the recording, who had the right to do so, and what does that fixing in a tangible medium protect the underlying routine? Do you assert that the first person to record someone performing the routine acquires the copyright to the routine itself? There's no basis for that, unless that person is the creator of the routine and the work is original.

In the present fact pattern, under US law, simply because someone filmed Dita von Tesse performing the routine does not mean that that person has a copyright over the routine. First, they're not the creator of the work, unless the work is the video of the performance and not the choreography itself. Second, you have issues of whether the recording was authorized or not, and I imagine that many such recordings of a burlesque routine would violate the license provided by the ticket to the performance in question and not result in an enforceable copyright. Third, copyright is available to the creator of original works. If a recording of the performance was authorized and the creator documented her assignment of her rights to the routine to the creator of the video (or vice versa), you might be able to establish that the recording of the performance establishes copyright protection for the underlying routine. But you are making significant logical leaps and ignoring the real-world issues associated with establishing and enforcing copyright. Maybe Ms. von Tesse has done all of these things and copyrighted a specific routine related to a burlesque performance involving a large martini glass, but I doubt it.
posted by iknowizbirfmark at 9:12 AM on April 17, 2009

Harry Houdini, presumably irritated at the imitators of his original big escape trick, had an interesting approach to protecting his next and most famous one. Quoting from Wiki: "The original cell was built in England, where Houdini first performed the escape for an audience of one person as part of a one-act play he called "Houdini Upside Down". This was so he could copyright the effect and have grounds to sue imitators (which he did)."*

Here's an intersting link about the Martha Graham case and who owned their copyright after her death. Conclusion? "Copyright is messy. Copyright and dance can be even messier."

I'm not going to even touch the issue of internation copyright.
posted by now i'm piste at 9:49 AM on April 17, 2009

Do you assert that the first person to record someone performing the routine acquires the copyright to the routine itself?

No, why would you think that?

In the present fact pattern, under US law, simply because someone filmed Dita von Tesse performing the routine does not mean that that person has a copyright over the routine.

Why would you think that I am saying that the recorder had copyright over the choreographic work (rather than the motion picture itself if that had sufficient originality)?

The author of the choreographic work holds the copyright on the choreographic work, not the person who recorded it, whether that person records it by reducing it to writing or recording it in still or motion pictures. (Just as the authorship of a musical work is not transferred to someone who merely presses the record button on a tape recorder, nor does the authorship of a dictated literary work pass to the typist.)

If a recording of the performance was authorized and the creator documented her assignment of her rights to the routine to the creator of the video (or vice versa), you might be able to establish that the recording of the performance establishes copyright protection for the underlying routine.

You don't have to assign your rights to the recorder in order to retain copyright over your original work. Saying that in order to protect your rights you have to give them away provides a silly catch-22.

But you are making significant logical leaps and ignoring the real-world issues associated with establishing and enforcing copyright.

Respectfully, it is you who are making significant logical leaps. I am just saying that an authorized videorecord of a choreographic work would certainly count as fixation in a tangible medium, much as an authorized phonorecord of a musical work would. I'm only correcting misconceptions about the law, not commenting on the specific facts of the case or the likelihood of enforcement. Those things can only be speculated upon.
posted by grouse at 9:54 AM on April 17, 2009

This article, while a little outdated and limited to the U.S. context, may prove instructive. Here's the abstract:

Choreographic works have been expressly copyrightable under the Federal Copyright Law in the United States for sixteen years. Although many choreographers have registered their works, only one infringement case has reached the Federal courts. Numerous legal commentators have analyzed the new copyright protections, but many questions remain unanswered for the dance community. This article provides an overview of this legal history in terms understandable to non-lawyers. It also identifies and discusses the many philosophical issues presented by the copyright of choreographic works. These issues include the definition of "choreographic work," the nature of "originality," the distinction between "expression" and "idea," the requirement of "fixation in a tangible medium," infringement, derivative works, and the role of expert testimony.

As to medium of fixation, it says:

Choreographic works may be fixed through film, videotape, or any of several notational systems although they are often prohibitively expensive.... Notably, fixation through film or videotape records every element of one, but only one, performance, including the interpretation of particular dancers. The result is a copyrighted work more detailed in some respects than written notation would provide, but problems result.

posted by onshi at 10:34 AM on April 17, 2009

... speaking to the OP's question, though, bear in mind that what is legal (copping the martini glass routine generally without performing it in so similar a way as to violate intellectual property rights) is not necessarily ethically acceptable ("ripping off" another performer's creative output). That a given performance doest not constitute a vioation of copyright has no bearing on its staus as a rip-off. That is a matter of the standards of the professional/artistic community.
posted by onshi at 10:40 AM on April 17, 2009

Tangentially, for further information about copyright and how it relates to other subgroups, Tim Harford's piece in Slate about magic tricks is interesting and has some good links in it.
posted by Lemurrhea at 10:46 AM on April 17, 2009

Mostly, it's just bad form and real lack of creativity. If indeed Dita has actually submitted her acts for copyright protection it might be pretty damned close, but not necessarily infringement by the book. However, what if this performer actually got Dita's consent?

It's not cool to rip off others' ideas. One of the women with whom I perform came to us after years in another group, during which she developed two signature acts. When she left, the group replaced her with a lookalike (same ethnic background, same measurements as she'd had upon developing the acts, etc.) who began to perform those acts with the same choreography and costumes. She battled for her intellectual property and kind of got screwed in the end... but now she's generating new acts and actively working to protect them.

Our town has a monkey-girl. Another performer in town did a monkey girl bellydance and people cried foul, although she didn't wear the same sort of mask or costume, and the choreography was nothing like the other performer's. Is nobody to ever do a monkey girl act, ever, in this town? What about other towns? There are other monkey-themed acts that have similar concepts. How far does it go?

We try to protect our brands (stage names) and intellectual property (acts/signature moves). A lot of times, newcomers to the scene evoke those they've used as reference. Some don't know any better or what the professional courtesy is. Some can't figure out how to come up with their own material (and thus, really shouldn't be doing burlesque, anyway). In burlesque, especially, there's not much to do that isn't somehow reinventing the wheel. There were indeed martini glass acts before Dita - also related to the champagne glass acts. And if it's a strip... well, there's a gazillion ways to strip but you could get slippery slope about what is a rip-off, what's derivative, and what is actually a new way to glove peel. Practitioners of traditional burlesque, you'd think, confront this more often; but really, even us neo-burlesque performers actively seek to come up with ever-wackier concepts so that we don't risk walking on well-trodden paths. This is a pretty hot topic in our realm.

So, in short: bad form, but maybe not actually copyright infringement.
posted by sadiehawkinstein at 1:23 PM on April 17, 2009

Argh, I totally forgot to speak more to the point: Yes, copyright is upon creation of a work and registering it is voluntary. Per the US Copyright Office "For choreography, the work may be embodied in a film or video recording or be precisely described on any phonorecord or in written text or in any dance notation system such as Labanotation, Sutton Movement Shorthand, or Benesh Notation."

The problem is determining how alike the pieces are.

Julie Van Camp has a great paper about this. Here's her very long, good list of references, if you really want to dig. And a pretty straightforward explanation here.
posted by sadiehawkinstein at 1:34 PM on April 17, 2009

"Although [Jennifer] Lopez argued that her video for "I'm Glad" was intended as a tribute to Flashdance, in May 2003 Sony agreed to pay a licensing fee to Paramount for the use of dance routines and other story material from the film in the video."
posted by iviken at 2:38 PM on April 17, 2009

Tangential to the copyright discussion, but more on track with the OP's original question, if Britain's Got Talent is anything like American Idol, I think they prefer covers over the fully original.

I wonder if there's an equivalent statutory licensing agency, ala ASCAP/BMI, that licenses performances spaces where dancing will be done, so any performance done in the space is covered, no pre-arrangements required.
posted by nomisxid at 2:44 PM on April 17, 2009

Dita herself is "ripping off" Lili St. Cyr, who in 1951 was put on trial for "lewd display" involving her famous "champagne glass" routine. In case you don't believe me, here's a news story:

"Lili St. Cyr performed in a giant champagne glass. Now Dita Von Teese, who often cites Lili as inspiration, says cheers to the routine. For those of you with bubble-licious dreams of your own, Jo Boobs did a great piece on where to get a life-size champagne glass."

How did a whole list of burlesque performers miss the historical reference? Jeez.
posted by aquafortis at 2:59 PM on April 17, 2009

Why would you think that I am saying that the recorder had copyright over the choreographic work (rather than the motion picture itself if that had sufficient originality)?

Because that's the copyright which would be relevant to the OP's question. That's what I've been addressing and it's pretty clearly framed. You seem more interested in trying to correct me and to find hypothetical situations in which the answer to the OP's question would be that there is infringement, and I find it quite annoying and pedantic. It is unclear to me whether a recording of a performance which is without the knowledge and permission of the creator/performer would result in a copyright defensible in practice. I doubt it - it probably is in theory but that was not the nature of the question. Maybe there is some controlling precedent about that, but it seems to me to be a pretty irrelevant issue. I've been annoyed by your apparent desire to address answers and not the question. It's what makes me not want to answer questions like this.
posted by iknowizbirfmark at 2:59 PM on April 17, 2009

Because that's the copyright which would be relevant to the OP's question.

Yes, but it's not the recorder who would have it, it would be the author of the choreographic work, who most certainly is not the cameraman. I covered this above. I am also quite certain that dance and burlesque performances are recorded on video with the permission and knowledge of the choreographer quite often, even if not for the explicit purpose of establishing copyright. I don't know why you think this is so far-fetched; that seems to be a linchpin of your argument that a video recording is irrelevant.

And this is clearly relevant to the question: "Is the Dita tribute infringing Dita von Teese's copyright?" There are a number of reasons why it may not be. Chiefly among those is that this routine may not be sufficiently derivative of the original work to infringe it, and you suggest that the act as described may not be. I agree that this is possible—I think we would have to see both the routines for a better idea. But it's not because public performance does not infringe copyright (it does), or because an authorized video recording would not be sufficient to fix the choreographic work in a tangible medium (it would).

As a side note, if these discussions annoy you to the point that you start ascribing uncharitable motives to others and writing about how annoyed you are, then I agree—maybe you shouldn't answer questions like this. I corrected you once on something that you admit was a misstatement, and then you started coming up with odd misinterpretations of my answers and getting irritated and personalizing things.
posted by grouse at 4:52 PM on April 17, 2009