The Boring Stuff 2: Copyright

Second post in my “Boring Stuff” series, and today I wanted to focus on issues around copyright. I was going to also include its even more boring -and expensive- cousin, licensing, but the copyright issues are already long and complex enough, so we’ll leave that for another time.

Now, it is important to remark that I am not a lawyer, so the following is absolutely *not* legal advice. However, I did work for quite a few years as a copyright enforcer for a company selling digital assets, and as a graphics artist in my desk job, I must keep informed of these issues, and apply these concepts daily. So take the following as suggestions, and if in doubt, consult a lawyer.

Also important to note, not all countries have the same copyright laws, but rule of thumb is, if the country is a signatory of the Berne Convention -most of the countries in Western Europe and the Americas-, it will mostly follow the rules below. For other countries, YMMV, but you can find a full list of the members of the World Intellectual Property Organization (WIPO) in their website. Now, with those disclaimers out of the way, let’s move onto the issues.

What is copyright?

If you ask around what is copyright, you’d probably get a variation of the following:

“copyright is a legal right that gives the creator of an original work (like a book, movie, song, or artwork) the exclusive right to use and distribute that work. It means that others can’t use or copy the work without the creator’s permission.”

In short, copyright allows creators to obtain a benefit when their creations are displayed, purchased or enjoyed by others. And it goes both ways, from us as creators, and to us, as users.

Let’s take a closer look.

Copyright and Dancing

When we dance, we are creating cooperative works of art. We might create our own choreographies, but usually we are performing to music which someone else wrote, and maybe someone different performed. Sometimes we are wearing costumes designed and created by yet more people. Each of them has the right to decide -up to a point- what is done with their intellectual property. Yes, you’ve created your choreography -I hope- or you’re improvising, and you’ve purchased the costumes. With the music itself it can get a bit more complicated and I’ll talk more about this in the next post. If you’re performing someone else’s choreography? You should ideally have permission to do so. You have created the choreography or are improvising, you also selected music, costuming, setup like “we start like this, we do this around this time, we do this other thing later on”? It’s your baby and *nobody* has the right to claim any ownership of it in any way, other than maybe individual parts like the music, which you *should* acknowledge properly anyway.

This means that:

• you can’t copy someone else’s dance or particularly lovely improvisation without permission
• you can’t encode CDs or DVDs and sell them off while you keep the files for your own use

Can you copy a dance off the DVD you bought with a choreography? That’s a more difficult question and will depend on each creator. A lot of these instructionals are offered under the understanding that you *can* and you *will*, but ideally you should contact them and ask, and if in doubt, abstain.

Wouldn’t this mean that for styles based around short combos like FCBD or Unmata we wouldn’t be able to dance at all? That’s not quite it. The sequences are not always in a particular order, and are in themselves derivative works of derivative works of original folk steps, and at some point the length influences whether something is copyright-able or not. You probably won’t be able to claim copyright of an 8-16 count sequence. But you shouldn’t pick up someone else’s full FCBD or Unmata inspired choreography without prior agreement. And anyway, why would you want to express yourself using someone else’s expression? Now, the training you received on the styles should allow you to use the steps to come up with your own… or to improvise without issue. But that doesn’t mean you can pick FCBD or Unmata (or specific dialect steps, with or without props) and teach them as your own and claim you created a whole new thing. That is intellectual theft, plain and simple.

All of these protections also apply the other way around to you as an artist.

• You posted a video and someone reposted it to poke fun at you? You can demand that is taken down since you’ve not given permission.
• You posted a video or photos and someone took it to promote their restaurant, event or classes without your permission? Same.
• You created a choreography (or steps in a dialect), and someone took it and is teaching it without your permission? You can demand that they stop, might even be able to demand compensation through legal channels
• You danced at a restaurant and the owner took photos or videos of you without permission, and your contract (because you DO HAVE A CONTRACT, DON’T YOU?) has no clause about using those? You can demand extra compensation.
• You wrote a series of helpful articles for your dance friends and students and someone is redistributing them in their own group? You can demand take down.

Copyright and Graphics

That’s well and good when it comes to dancing, but what about other issues surrounding our dancing? The general rule of thumb is “if you haven’t created it, or haven’t got a specific license to use, don’t.”. This in particular applies to issues like graphics, photos, icons, even fonts, which we would be using for our promotional materials. So it’s not ok to pick photos from this website because you found them on google. You can’t just pick an icon for social apps for your promotional fliers, you can’t pick someone else’s font, unless you have specifically created it, or have others created either of them from scratch for you to use commercially and obtained the relevant license. And yes, the *commercially* part in that sentence is important too. A lot of free fonts found online allow for personal use but require a fee for commercial use. You also cannot lift code, although these days of using content management systems that is less of an issue.

So, how do you put together a nice flier or website for yourself? Let’s look at this website as a case study

• The dancer on the header: I purchased an EPS image off a stock images site, licensing it for commercial use, and then modified extensively so I would have something uniquely mine.
• The header background: created digitally by me in Photoshop (commercial license too!) from scratch, aided by brushes that I purchased and are licensed for commercial use.
• The font on the titling and sub header is a font from a commercial font foundry that I licensed years ago.
• The photograph on my upcoming events page: I had a private photo shoot and requested commercial usage when organizing it and paying for it.
• The generic images used on these pages, like the one above: they are licensed for commercial use from a stock site.
• The website itself: I designed myself, down to colour palette, using a free version of a builder included with my content management system, which is open source.

I know all of this sounds expensive. It doesn’t have to be. You can access free stock photography, or very affordably priced. A lot of the indie fonts are very affordable, we are talking around the price of a not too fancy coffee at a well known chain. There are open source versions of image editors; WordPress is still open source and you could install it for free on your website if you know how and you fulfill the server requirements. You can also contract a graphic/web developer to do all of this for you; they would be the ones providing you with the final images/icons/design and would be the ones responsible for the licenses. Although of course you’d need to pay for their time and design, but if you are not technically inclined, sometimes it is a reasonable expense so you can focus your time and energy into promoting yourself instead of learning a complex image editing program. But regardless, everything you are using that falls under intellectual property that you haven’t created yourself should be legally acquired, and have permissions to use commercially. So keep that in mind next time you browse around the net for backgrounds for your photos.

Copyright and Clothing, Patterns and Prints

What about fabric print designs, clothing patterns, outfit designs, etc? Again, that will depend a lot on the situation. Clothing itself is usually not copyrighted, because clothing is considered utilitarian and not an artistic . There are only so many ways you can make a skirt or pants, even if you want a particular silhouette. However, you CAN copyright a pattern -the pieces, shapes and sizes and how they join to one another-. So you cannot share patterns with your bestie. A lot of them are not allowed to be used for commercial purposes either, so you can’t buy a bunch of random patterns and start your costuming company. Some of them do allow commercial use, and -you guessed it- charge accordingly.

As an example, you can’t copyright “my mermaid skirt has three pieces in the front and two plus a gore in the back”, but you can copyright the version of your skirt pattern that has the front section divided into three equal parts and the flare of 45º starting exactly at this particular length from the waistband, and was all put onto a tangible form (PDF, image file, or paper, doesn’t matter). You might be able to copyright “significant details” like a particular branded pull on zippers, or the Nike wave or Adidas 3 lines. However, you can’t copyright something like “there’s a gore in the back of the skirt for flaring” or “there are two darts shaping the bum” as these are often utilitarian necessities for the shapes. More general issues like “Indian big embroidered and stoned decorations on the ends of a belt and some trim with Kuchi jewellery” is also not copyright-able, at least not in a sensible world, although someone might disagree. Now copying an exact costume, particularly with embroidery or the like might find the copying person in trouble.

How about fabric print designs? You can create totally new patterns that will absolutely be yours to use, the new lines from Alma Tribal are a great example of this, which are also not mining existing folk work (and extra kudos for that!). But if you pick someone else’s work and reproduce them yourself, even if those designs are based on folk patterns? that is a big no-no. So choose wisely when buying your costuming from third parties, as sadly this has become a huge issue within the community of late. How about buying the same commercial fabric prints to offer similar clothing designs to someone else? Legally allowed but if you need to ask about the morality of this, you might need to look inside yourself and ask why you’re feeling the need to do this instead of doing your own designs, as you obviously have the capacity to create.

What is not covered

Copyright, for the most part, is obtained the moment your creative work is expressed and manifested, so if you dance, film, record, etc it is automatic.You need your idea/artwork/designed expressed somehow. As suggested above, you obtain copyright on your clothing pattern the moment you create them materially, but you can’t copyright the idea of a mermaid skirt or wide bottom trousers. You have copyright over the photo your photographer took of you with cherry blossoms framing your lovely face, but you can’t copyright the idea of a photo with cherry blossoms. I have copyright of the costuming and musical theory handouts I created for my workshops. Choreographies are expressed the moment they are danced, although most dancers will record them. So you gain copyright as you record your dancing, but you can’t copyright the *idea* of dancing to this particular song with this particular prop.

So, repeat after me: YOU CANNOT COPYRIGHT AN IDEA.

Copyright Violations

As said above, you gain copyright the moment you express or record your creative idea in a tangible manner. If you need to go after someone for violating your copyright, it might help if it is registered, but that’s not always required. This will be different depending on where you live.

What to do if someone violates your copyright? You have some recourse, even if you are credited. Remember part of your copyright is the right to assert how your work is distributed. So:

1. DO NOT bring out torches and pitchforks, don’t rouse a mob, don’t incite people to do anything on your behalf out of indignation
2. DO start documenting everything: screenshots of websites, photos of venues, how you came across the infringement(s), how it is presented
3. Assess the violation, where it took place, how it’s affecting you. Online? Flyers? In a restaurant? text lifted from your helpful website?
4. If it happened online, check out where the offending file is hosted. They will often have an established procedure to request take down.
   • If the file is in one of the major websites, with legal offices in the US (Facebook, YouTube, etc) you will likely have to fill in DMCA. These have very specific requirements that often are outlined in the forms you fill in, and they ask for declarations exactly as expressed in their outline. For more info on why, check out the videos and information at the Copyright Alliance
   • If the file is hosted in a server based in a country with very different copyright rules to Western Europe, Americas, or not a Berne Convention Signatory, you might be able to send a take down notice as above, but realistically, don’t expect results.
5. If it happened at venues, shops or the like using photos or videos of you or your work without permission, you can send a C&D letter (example in the link)
6. If the case is more complex, or has resulted in substantial financial or reputational damage, always consult a lawyer.

If you are on the receiving end of a DMCA/C&D, and you don’t think you are in the wrong:

1. See previous point 1. DO NOT rouse a mob, online or otherwise.
2. DO start documenting everything, along with copies of whatever proof you have that your work is yours: files with EXIF data or creation dates, progression videos or images, backups of online files with data demonstrating prior creation, etc.
3. Assess what the DMCA/C&D is asking for.
   • If you received it through your website’s host, you might have the option to respond with a counter notice like this one. Sometimes that’s all it takes.
   • Music copyright strikes from YouTube or Facebook for dance videos are incredibly common. Usually the site will offer a solution where your video gets demonetized (or silenced in certain countries) and often that will be the end of it. This is sadly a common occurrence; you want to avoid this, the only real long term solution is to make your own music

If it gets more complicated than that, you get a counter-counter notice, or you were really redistributing someone else’s work, you should not be looking for advice in here. Consult a lawyer and have all following correspondence through them.

Exceptions

Copyright laws cover creative works from the moment of creation *as long as* it was created after a certain date. For the UK it can be 1911 or 1957 (depending on the Act involved), and for 50 years after the death of the author if it was after the date of the copyright act involved. For the US those dates might be different. The best rule of thumb I’ve found is,

• If it was created before 1900, it’s likely the work might not be protected, although there are some exceptions for works donated to charities, or for corporations (see Peter Pan and Great Ormond Street, or Walt Disney Corporation for examples)
• If the work was created after 1900 but before 1930s, research the item in question, the laws of the country of origin and yours.
• If the work was created after 1930s, assume it’s covered unless
  • it is truly anonymous
  • it is explicitly listed as public domain (no, google search is not public domain)
  • it is under Creative Commons licensing; these are still covered but have their own rules
• be extremely careful with some works that you might think are public domain but aren’t. The traditional ” happy birthday” song is one of those cases that has a very convoluted history.

Conclusion

So, as a short summary: understanding copyright issues is crucial for several reasons:

1. Choreographic Copyright: Choreography is a form of creative expression protected by copyright law. By understanding copyright, you can protect your original choreography from being used or copied without your permission.
2. Using Others’ Work: You may want to incorporate music, visuals, or other artistic elements into your performances. Understanding copyright helps you navigate the legalities of using others’ work without infringing on their rights.
3. Performance Rights: Knowing about copyright can help you understand your rights as a performer. It’s important to know who owns the rights to the performance and what permissions are required for recording, broadcasting, or distributing your performance.
4. Collaborations: If you collaborate with other artists, understanding copyright issues ensures that everyone’s rights are respected, and there’s clarity about who owns what part of the work.
5. Commercial Opportunities: Understanding copyright can help you capitalize on your work commercially. Whether it’s licensing your choreography for performances, selling instructional videos, or any other commercial opportunity, knowing your rights is essential.
6. Avoiding Legal Issues: Ignorance of copyright law is not a defense if you’re accused of infringement. Understanding copyright can help you avoid legal issues and potential lawsuits.

In short, being informed about copyright issues will not only protect your own work but also help you navigate the complex legal landscape of the performing arts industry.