COMMENTS AND VIEWS SUBMITTED TO THE COPYRIGHT OFFICE ON COPYRIGHT IN CHOREOGRAPHIC WORKS

Walter J. Derenberg

OCTOBER 19, 1959.

I have just received and read with much interest the study by Borge Varmer on "Copyright in Choreographic Works." In my opinion, the proposal which was found in most of the earlier revision bills and, more particularly, in the Thomas bill of 1940, would be entirely satisfactory. In other words, it would be my recommendation that the proposed copyright revision bill should include, among the protected works, the following provision:

"Choreographic works and pantomimes, the scenic arrangement and acting form of which is fixed in writing."

WALTER J. DERENBERG.

John Schulman

OCTOBER 23, 1959.

I have only a brief comment on the study made by Borge Varmer concerning "Copyright in Choreographic Works."

To the extent that a choreographic work is reduced to tangible form, it should receive protection under a copyright statute as a writing of an author. Obviously, the fact that the description of a dance may be set down in symbols recognized by choreographers, rather than in conventional language, does not make it any less a writing than a song written in musical notation or a photograph. Since they are in fact writings of authors, choreographic works should be protected whether they are "dramatic" or not.

The primary problem is not whether these works should be protected, but the extent of protection which should be accorded, i.e., what exclusive rights should be granted them by the statute. These works should unquestionably be protected against reproduction in copies from which they can be read or visually perceived. On this score I think there can be little controversy. However, many serious questions arise if the proposal be that choreographic works should be protected against "performance.'

Before this facet can be considered, it seems to me that information should be obtained from choreographers, dance directors and others, concerning the feasibility of providing any such protection. The answer does not depend on legal theory as much as it does upon the techniques and the practical problems involved. I have only a layman's meager understanding of dancing techniques. Accordingly, I can perceive the possibility of granting exclusive rights to perform a ballet which tells a story in movement instead of words. The principle would be the same as that applicable to any other dramatic work. But the question is whether dance figures and patterns are so well defined that anything less than a dramatic presentation could be deemed to be an infringement of a prior original choreographic work.

It is in these elements of originality and infringement that I visualize the problems. For example, during a visit to India I had the occasion to see dancing which was so ritualistic and stylized that there could be no doubt that the various dancers and groups followed set and identical patterns. However, these patterns, I am told, were traditional and accordingly no choreographer could claim originality for them. The question would then arise concerning the amount of variations which would provide originality.

In recent years, various patterns of dancing have appeared upon the living stage and in motion pictures. Some of them seem, to uninitiated persons like myself, to be very much the same. The essential question is whether these

dances represent only styles or trends, or whether the individual dances are sufficiently identifiable entities to justify a claim to originality, and to make possible a determination of infringement.

The question of identification, I should judge, would present even more difficulty in patterns of ballroom dancing.

The nub of the question is whether a choreographic work or actual performance constitutes an identifiable entity sufficiently defined and delinated to determine its originality on the one hand and its infringement on the other. These are matters on which we should obtain information and education from persons

skilled in the art.

Of course, if an exclusive right in the performance of a choreographic work were to be provided, it should be limited, as is music and literature, to public performance for profit. This, however, is only one of the lesser aspects of the problem.

May I suggest, therefore, that the study made by Borge Varmer be supplemented by thorough investigation of the nonlegal aspects of the subject. JOHN SCHULMAN.

The findings you sent me are of great importance, but I think Mr. Varmer together with all the learned legal experts he quotes make a basic mistake in point of view. If any attempt is made to define choreography in terms of, or classify it with, dramatic literature, the project of copyright [for] dance composition is doomed to failure through inexactness.

Choreography is neither drama nor storytelling. It is a separate art. It is an arrangement in time-space, using human bodies as its unit of design. It may or may not be dramatic or tell a story. In the same way that some music tells a story, or fits a "program," some dances tell stories-but the greater part of music does not, and the greater part of dancing does not. Originality consists in the arrangements of steps and gestures in patterns; the story may or may not be unique. I think the confusion with story and drama has come because an outline or synopsis of plot has been easy to write down and file; up to very recently an exact definition of steps has been impossible.

I think further there is no profit in trying to define art or creative choreography as opposed to ballroom or folk steps in respect to their difficulty, simplicity or familiarity. The exact problems pertain to music. There is in both fields an enormous body of inherited material, some simple and most familiar; in music a melody or composition can be copyrighted if [a certain number of] bars of music are unique and can be proven to be so. In this way arrangements or transcriptions of folk material can be copyrighted as original with the composer. In the same manner, all inherited folk steps, classic ballet technique, basic tap devices, are public domain. But their combination, good or bad, can be deemed to be original. It is not the province of the law to judge whether a dance, even the most trite and commercial, has creative original value. No one could think the majority of tunes of tin-pan alley creative achievements. Such as they are, however, they can be protected. The protection is based on a time measurement-not more than eight bars can be duplicated without infringing authorship rights. An equivalent measurement could be worked out for choreography. I see no reason why the inventor of special ballroom steps or patterns cannot avail himself of these rights if he so chooses.

Eventually all good creations, in whole or in part, go into public domain. But that does not mean that the choreographer alone of all creators should not reap while he lives the rewards of his talents and efforts.

The only two possible means of making a tangible graph are the Labanotation and films. Films record performance and will make clear style and dynamics. They are, of course, extremely perishable.

The making of films is at present blocked by various union requirements; but, with the formation of the Choreographers' Society, we have confidence that these difficulties can be compromised and resolved. In any case, they should have no bearing on the formulating of a law. Give us some chance to protect our basic rights and we will settle all other difficulties ourselves.

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AGNES GEORGE DEMILLE.

Agnes George DeMille

NOVEMBER 23, 1959.

In answer to your letter, let me make it clear that what the choreographers want is not protection against the performance of their dances, but performance for pay: If new dance steps are invented for social or ballroom dancing, naturally people have every right to copy these and perform them for their own amusement, just as people can whistle tunes without any tax, but if an exhibition piece of ballroom steps is devised and this combination is copied and performed for money, I think some infringement of rights has taken place. What I am trying to say is that I think the copyright must be based on the principle and not on the quality or type of performance. The moment money is received for dancing, the author of the dance steps should receive a royalty. This principle, I believe, applies to all the arts.

AGNES GEORGE DEMILLE.

John Martin

NOVEMBER 30, 1959.

Basically the matter of copyright in choreographic works seems to me a reasonably simple one, in no way justifying the periodic agitations that it has caused over the past few years.

The source of the trouble lies in the inertias of "literary" thinking, which finds it difficult to conceive of any creative work that is unverbalizable. Most of the confusion disappears as soon as we separate the dance in our thinking from any inevitable connotations of "drama.' The choreographic field cannot by any possible manipulation be forced into the category of dramatic works, any more than the field of music can be.

Actually its analogy with music is a far truer one. In music we have not only operas, which tell dramatic stories, and songs, which publish specific states of emotional activity that can fairly be considered as dramatic, but also completely formal abstractions-melodic, harmonic, contrapuntal-symphonies, concerti, divertimenti, suites, quartets, quintets, fugues, sonatas, etudes, etc. Parallel categories exist among dance compositions, from story ballets and dramatic solos to pure abstractions in all dimensions, with or without music. The analogy holds in all levels of "quality," classic or popular.

Since the dance employs a distinctive medium, that of bodily movement, it demands also a category of its own in the field of copyright, if only because no other category's techniques of recording are applicable to its requirements. Clearly there must be some definitive recording of any specific work in which rights are to be established. Words are as inadequate for the purpose of choreographic recording as they would be for the recording of a Bach fugue. A filmed recording of a dance composition is no more acceptable than a phonographic recording of a musical composition would be. For one thing, it is a recording, not of the composition itself, but of a specific performance of it, which is inevitably an interpretation (sometimes even an adaptation because of the limitation of the individual performers) and consequently may depart radically from the choreographer's (as of the musical composer's) intent. For another thing, it lacks visible definition, especially in the case of an ensemble composition, in which groups of figures move in complex design, always in three dimensional space, and accordingly in front of each other much of the time.

It is inconceivable for a director to have to reproduce a choreographic ensemble composition from a film recording of it as it would be for an orchestral conductor to have to reproduce a symphony by listening, alone with his instrumentalists, to a phonographic recording, each picking out his own instrument and memorizing what he hears as he goes along. Such a procedure is manifestly absured. At present there is a fairly well established system of dance notation, comparable to the established system of musical notation, called Labanotation, employed by representative artists in this country and in certain European countries. There is another system, the Benesh, of recent invention, used chiefly by the Royal Ballet of London and in some outlying areas of the British Commonwealth under the active promotion of Government agencies. There are also several old systems, not very wieldy nowadays but still quite legible. No major difficulty exists, therefore, in this respect. A choreographer who declines to employ some one of these systems would be in much the same position, as