Intellectual Property @ Dancing

Being active in ballroom and competition dancing since the late 1980s, it is not a surprise that a combination of Intellectual Property (IP) and dance-related issues caught my interest.

Many performing artists wonder if their creations are anyhow protectable. In the following, let's shed some light on the options dancers, choreographers and other creative people in the industry have to protect the results of their creative work. The options are neither exhaustive nor elaborated in detail. Consultation by a patent or trademark attorney skilled in the field is recommended.

Elements of Dance

What does it take to perform a dance show?

Well, first of all one or more dancers. Secondly, a stage. In the most simple embodiment this is a dance floor, but when requisites are used to set up a certain design we might need a theater stage. As we usually don't want to see the dancers in their native and natural state, we'd require costumes including body wear, shoes, hats, jackets, and more. Being on stage, generally being distant from the audience, performing artists need to emphasize their faces to allow the remote viewer grasp the facial expressions and emotions to be conveyed. Make-up and skin colors come into play for this purpose. Regularly, there is no dancing without music which is either played live or from any kind of playback medium. And to put the performances into a good light, lighting arrangements are an important asset as well. Further technical equipment might be needed to fulfill today's audiences needs for multimedial experiences. A good piece requires a name to be recognized by the audience, and the dance company performing the piece requires a brand. All these items and people mean nothing without a choreography putting everything together. Choreographers and trainers contribute as well.

As you can already guess, performing a dance show requires some efforts, let alone the skills needed to perform the dance choreography. Can all these efforts be protected?

The answer is, as always in law, it depends. Let's look at the applicable IP tools and how they could support dancers in protecting their efforts.

Trademarks

May it be the name of a dance company or an individual artist, the distinctive title of a certain piece of performance, a logo, or even a specific distinguishing sound - these items can be in in principle protected by trademarks.

Prominent examples of word marks include Alvin Aley's trademark registered for "entertainment in the nature of dance performances" or Pina Bausch's trademark registered for a variety of goods and services obviously aiming at merchandising the name of this famous German dancer and choreographer.

Concerning my own business, I held the German trademark "Fire and Ice", inter alia, for artistic performances for entertainment, particularly dance performances. The dance company I was a member of in the 1990s performed on an international level a show named "Fire and Ice", and the trademark guaranteed us exclusivity at least in Germany for ten years.

Not only provides a trademark an exclusive right of use (in the absence of conflicting prior rights, of course) helping the owner to establish his or her brand, but it also offers the opportunity to license and thus monetize the IP. In the example of "Fire and Ice", we successfully licensed the trademark to a few dozens of entertainers, organizers of balls and events, and live bands.

As the trademark system provides not only for word marks, other trademark types may be considered for the dancers as the case may be, for example 3D marks, color marks, sound marks, smell marks, position marks, movement marks, and multimedia marks.

Designs

Costumes, elements of the stage design, merchandising articles, make-up and more can be made the subject of industrial design rights.

In Europe, the so-called Unregistered Community Design would grant the designer upon publishing an immediate right at no cost, but with some caveats such as the need for proper documentation and a protection period of only three years.

Designs are categorized by the Locarno classification. The applicable class for clothing is 02.02. A search reveals about 5000 protected designs with about 2400 from Spain and 1800 from Italy. This amount of rights not only suggests that each costume designer should think about protecting his/her work product, but it is also strongly advisable to run a design search before putting efforts into a stage production.

Copyrights

The core element of each performance is the choreography. Is the sequence of steps considered by the choreographer and performed by the artist protectable? Yes and no.

Generally and without going into too much details, a copyright is created in the moment the creative act is completed. However, to enforce one's copyright proof of the creation itself and the date of creation is required. It is thus recommended to register the copyright with an official authority or deposit hardware describing the copyrighted work product with a notary or another trustworthy institution. (The often recommended option to place the copyrighted work into a self-addressed envelope, and then put the envelope to the postal service which will date stamp the envelope, is not recommended as proof is missing of the content of the envelope.)

How to deposit a choreography?

In the US, the United States Copyright Office offers the registration of a choreographic work product when it is fixed, i.e., put down in a way that allows the choreography to be performed in a "consistent and uniform manner." Several ways exist to fix a choreography, including dance notation, video recording, textual descriptions or photographs.

The possibly most secure, nevertheless complicated way is to employ dance notation based on Labanotation, a method suggested by Austrian-Hungarian Rudolf von Laban to analyze and write down the movement of the human body. The Dance Notation Bureau founded already in 1940 has ever since been creating dance scores, also using Labanotation, that can be filed with the copyright office.

(picture source: Li, Min & Miao, Zhenjiang & Ma, Cong. (2019). Dance Movement Learning for Labanotation Generation Based on Motion-Captured Data. IEEE Access. PP. 1-1. 10.1109/ACCESS.2019.2951588.)

Beyonce's "Single Ladies" choreography, for example, is protected on a score comprising 40 sheets of Labanotation. Read the amazing story behind JaQuel Knight, the choreographer of Single Ladies, here.

As for the music used in the performance, dancers tend to use publicly available pieces which may result in copyright issues when the performance is recorded and published to a wider audience. On the other side, own copyrightable music may be created by composing a new song or sound, and free music libraries or YouTube's audio library may be used to support the dance performance.

Patents

And finally, there is hardware which can be made the subject of a patent application.

Michael Jackson's signature moves in Smooth Criminal wouldn't have been possible without a trick, a patented trick: US patent number 5255452 describes a method and means for creating an anti-gravity illusion. As the patent summary states, a shoe wearer can lean forwardly beyond his center of gravity by virtue of wearing a specially designed pair of shoes which will engage with a hitch member movably projectable through a stage surface.

Many other items used to bring a dance performance to life may be patentable, such as special lifting devices (consider deus ex machina, for example), a special set of stage lighting, an innovative stage setup, a specific way to change dresses during a performance ... human creativity is endless.