CAN CHOREOGRAPHY BE PROTECTED UNDER INTELLECTUAL PROPERTY LAW?

CAN CHOREOGRAPHY BE PROTECTED UNDER INTELLECTUAL PROPERTY LAW?

In the entertainment industry, intellectual property law grants individuals, exclusive rights to their works so that they may recoup the costs associated with developing and marketing artistic talent and producing creative works, such as movies, plays, and musicals. Members of the entertainment industry may include performing artists, writers, producers, directors, investors and distributors. Copyrights may be the most familiar type of intellectual property right because it offers exclusive rights to the works with which the general public is most familiar with such as choreography, sound recordings, lyrics, musical compositions, screenplays, performances and audiovisual works.

Performance techniques play a significant and valuable role in the entertainment industry. Musical genres are often associated with particular combinations of performance techniques and individual performing artists are often recognized for unique performance techniques. Performance techniques may include methods for producing particular dance moves or choreography, methods for controlling an individual’s vocal chords and even methods for use of particular props or instruments or methods for creating illusions on stage. These techniques are intellectual property, similar or closely related to choreography, sound recordings, lyrics, musical compositions, performances and audiovisual works – all of which are traditionally protected by copyrights.

In answering the question on whether choreograpy/dance steps can be protected under Intellectual Property law, it is pertinent to look at works that are qualified and eligible for protection under intellectual property law. Eligible works are works of copyright which intellectual property law in any jurisdiction, will protect. However, there are specific works that are statutorily recognized and therefore enjoy protection. The law to be referred to in this piece will be the Nigerian Copyright Act, Cap. C28, Laws of the Federation 2004 (CPA, 2004) which derived its origin from the English Copyright Act 1814 and which is also similar to copyright and intellectual property laws of most other jurisdictions.

By virtue of section 1(1) of the CPA, 2004; the term ‘work’ is defined by giving a classification of the elements that are contained therein. The Act in further defining the term, gives the classifications below:
a) Literary works includes, irrespective of literary quality, any of the following work or works similar thereto:
I. Novels, stories and poetical works;
II. Plays, stage directions, film scenarios, and broadcasting scripts;
III. Choreographic works;
IV. Computer programmes;
V. Text books, treaties, histories, biographies, essays and articles;
VI. Encyclopedias, dictionaries, directories, and anthologies;
VII. Letters, reports and memoranda;
VIII. Lectures, addresses and sermons;
IX. Law reports, excluding decisions of courts and
X. Written tables or compilation.

The section also goes to give the other classifications of work as; musical work, artistic works, cinematograph film, sound recording and broadcast.

However, section 1(2) provides for an exception that states that a literary work (including choreography), musical or artistic work shall not be eligible for copyright unless:
1. Sufficient effort has been expended on making the work to give it an original character: for this provision to be met, the owner of a literary work (choreography) who seeks to have his work copyrighted, must be able to prove that sufficient effort has gone into the making of that work/dance step such that it carries on an original character. The Nigerian court in the case of Offrey v. Chief S.O Ola & Ors 12 NIPJD (HC. 1969) H/23/1968, held that copyright would exist in any given product if that product is the result of some substantial or real expenditure of mental or physical energies of the producer and the labour or skill was not a negligible or commonplace one. The court further stated that the amount of labour, skill, judgment and ingenuity required to successfully support a claim for copyright was a question of fact and degree in every individual case. The case was a landmark case as it clearly showed that sufficient effort will be deemed to have been expended on the work to give it an original character only if there is in the work evidence of some industry and knowledge. In the same vein, the English court in the case of Cramp & Sons v. Frank Smythson Ltd. (1944) AC 329, held that the precise amount of knowledge, labour, judgment or literary skill or taste which the owner of the work must bestow in order to acquire copyright, must in each case be very much a question of degree.
2. The work should be fixed in a definite medium of expression now known or later to be developed: in the English case of Norowzian v. Arks (1998) EWHC 315, the courts explained this principle to mean that the work being desired to be copyrighted must be one that has been definitely expressed in a language already known or a language which is later to be developed and from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.

From the foregoing therefore, the answer to our question above will be that for choreography or dance steps to be classified as a literary work that can carry copyright privileges, it must be one that meets the two requirements discussed above. This is an aspect of copyright that seems complicated as everyday around the world, new dance steps/choreographies are introduced by musicians and their dancers while recording music videos or even during life performances. In applying copyright laws, it would be safe to say for choreography or dance step to be eligible to be copyrighted, it must be one that in no way resembles choreography or dance steps of another artist or dancer. This would be very difficult though as most dancers even while ‘inventing’ a new style of dance, still incorporate in one way or another choreography or dance steps of other artists or even choreography of older and possibly dead artists.

Sokombaa Alolade