work, as a "dramatic composition," if it "tells a story, develops a character, or expresses a theme or emotion." This brings us to the question of what the copyright statute should provide to delimit appropriately the choreographic works that should be given protection thereunder. Several approaches to this question may be suggested. One approach is that which has evolved under the present law: that the protection of "dramatic compositions" suffices to protect choreographic works within appropriate limits. This approach has the advantage of placing choreographic works in an established framework as to other provisions of the statute, particularly in regard to the right of the copyright owner.56 It also serves to give some definition to copyrightable choreography, at least by excluding social dances and simple noncreative "dance routines" which would not be "dramatic." This approach, however, does not resolve any doubt that may exist as to whether a choreographic work that does not "tell a story" would be afforded protection as to its performance. A second approach is that used in many foreign laws and in most of the prior revision bills: naming "choreographic works" in the statute as a separate category of copyrightable works. It might be argued (perhaps sentimentally) that choreography is a sufficiently important and distinct form of art to merit specific mention; and that the term "choreographic works" would be fairly well understood as meaning only theatrical dances 57 of creative authorship. This approach might be thought to avoid any question as to whether a choreographic work must "tell a story" in order to be protected as to its performance; but it also seems possible that unless the term "choreographic works" were further defined, it might be construed so broadly as to include rather simple dance movements having no dramatic quality and a minimum of creativity. It is worth recalling that in the foreign laws naming "choreographic works" as a separate category, the provisions specifying the rights of authors generally refer to "dramatic works" but not to "choreographic works"; apparently the former is deemed to include the latter. Another approach, combining the first two, is exemplified by the copyright statutes of the United Kingdom and British Commonwealth countries: 58 naming "choreographic works" as being included in the general category of "dramatic works." This would give express recognition to "choreographic works" while also defining that term to the extent of requiring that such works be dramatic in character, and placing such works in an established framework as to the rights accorded. B. FIXATION OF CHOREOGRAPHY The provision in the Federal Constitution empowering Congress to enact copyright legislation refers to the "writings" of authors.5 It is doubtful, at best, whether the Federal statute could extend This assumes that the rights accorded to "dramatic" works are appropriate for choreographic works. This will be discussed below at p. 103. 37 The limitation to theatrical dances may be inherent in the term "choreographic works." Such limitation also seems to be implied in the provision in many foreign laws for the fixation of the "acting form" or "scenic arrangement." 8 See notes 32 and 33, supra. Art. I, Section 8, clause 8. "Writings" may have a dual meaning: as relating to the character of an author's creations, and as relating to the physical form in which such creations appear. It is pertinent here in the second sense. copyright protection to a work presented only in a performance and not recorded in some tangible form of "writing." 11 60 Moreover, in the absence of some tangible record of the dance movements, it would be extremely difficult to determine the question of infringement as between the dances presented in two different performances. Perhaps for this reason, most countries (including some that give copyright protection to unrecorded "oral" works such as speeches) require that choreographic works, to obtain copyright protection, must be fixed in some tangible record. Fixation of a choreographic work is now possible in several ways: by a detailed textual description of the dance movements (which may be laborious and perhaps not entirely reliable), by dance notation (such as the Laban system), or by making a motion picture of a performance of the dance. Another aspect of fixation is its adequacy to reveal the movements of the dance in sufficient detail to permit the dance to be performed therefrom. Thus, many foreign laws and most of the prior revision bills (following the Berne Conventions) have required that the fixation show the choreographic work in "acting form." Even without such a specification, this degree of completeness would seem to be essential for works that are to be performed. Our present law contains no such specification for dramatic works but it is understood that a "dramatic composition" must be in a form capable of performance.61 Fixation in a tangible form may be particularly inconvenient or costly for choreography, and there may be grounds for sympathy with a plea that the creator of a dance as presented in a performance, without a tangible fixation, should be protected against reproduction of the performance by others.62 But the Constitution seems to preclude protection in this situation under the copyright statute. Whether such protection might be granted on some other legal basis is beyond the scope of this study. Perhaps the most that can be done under the copyright statute is to recognize all possible forms of fixation (including a motion picture) as a "writing" of the choreography. C. RIGHTS IN CHOREOGRAPHIC WORKS As noted earlier, in the foreign laws naming "choreographic works" as a category of copyrightable works, the rights accorded to them are not separately specified but are apparently the rights specified for dramatic works generally. This is true also of the prior revision bills. The rights to be accorded to choreographic works seem clearly to be the same as those accorded to dramatic compositions generally. In summary, these rights under the present statute (sec. 1) are: to make and distribute copies of the work (i.e., of the "writing" in which the work is fixed); to transform the work into another version; to perform the work publicly; and to make and use transcriptions or records of the work from which it can be reproduced or performed. Parallel rights are accorded also to nondramatic literary and musical works, but they apply differently according to the differences 40 See Chafee, Reflections on the Law of Copyright, 45 COLUM. L. REV. 503 (1945). 61 A narration of the story for a play, for example, being inadequate for performance, might be protected as a nondramatic literary work, but the protection would relate to its "public delivery," i.e., a public reading or recitation of the narration, as distinguished from the "public performance" of a play. A need for such protection is indicated by AGNES DE MILLE, AND PROMENADE HOME, chap. XV (1956). in the inherent nature of the several kinds of works and in the varying modes of their utilization. Thus, as regards the right of transformation into another version, the present statute refers to the "translation" of a literary work, the "dramatization" of a nondramatic work, the "conversion" of a dramatic work into a "novel or other nondramatic work," and the "arrangement" or "adaptation" of a musical work (sec. 1(b)). Nondramatic literary works are protected against their "delivery" in public "for profit" (sec. 1(c)), dramatic works against their "performance" or "representation" in public (sec. 1(d)), and nondramatic musical works against their "performance" in public "for profit" (sec. 1(e)). The "transcription or record" of a nondramatic literary or musical work may be made in the form of a sound recording; in the case of a dramatic work it may also take the form of a sound recording in part (in regard to the literary and musical content of the work) but the "transcription or record" of the action requires visual recording as in a motion picture. 63 Insofar as the rights differ for these several kinds of works, choreographic works seem clearly to fit into the pattern of dramatic works. Of prime importance is the fact that the "for profit" limitation on the right of public performance in nondramatic musical works, and on the right of public delivery in nondramatic literary works, is not imposed on the right of public performance in dramatic works. The reasons underlying this-that public performance is virtually the only source of revenue for the author of a dramatic work, and that those attending any public performance of a dramatic work may be less likely to pay to attend another performance 65-would seem to be applicable to choreographic works. VI. SUMMARY OF ISSUES The foregoing analysis would appear to sustain the following propositions: that choreographic works, insofar as they represent original creations of authorship by which a story, theme, or emotional concept is conveyed to an audience, are proper subjects of copyright protection in regard to their performance; that to secure such protection, they must be fixed in some tangible form in sufficient detail to be capable of performance therefrom; and that the rights to be accorded to the copyright owners of such works are the same as those accorded to dramatic works generally. If these propositions are accepted, the issues to be considered in the treatment of choreographic works in a revision of the copyright statute may be narrowed down to the following questions as to the appropriate designation of such works in the statute. 1. Should "choreographic works" be named specifically in the statute among the categories of copyrightable works? 2. If so, should they be named as a species of dramatic compositions or as a separate category? 3. If "choreographic works" are named in the statute, should that term be further defined? If so, how defined? 63 The performance right for musical works is subject to a special exemption of performances by means of coin-operated machines in a place to which no admission fee is charged. 17 U.S.C. §1(e). The recording right for musical works is subject to a compulsory license as to recordings of the work for reproduction on mechanical instruments such as phonographs. 17 U.S.C. 1(e). For a full discussion of this provision see Henn, The Compulsory License Provisions of the U.S. Copyright Law [Study No. 5 in the present series of committee prints]. See Varmer, Limitations on Performing Rights (Study No. 16 in the present series of committee prints). |