Section 11 - Copyright
11.1. Intellectual Property (IP) & Copyright
Your choreography is your intellectual property and copyright is the legal right to perform or copy it.
Copyright in Canada is governed by federal legislation called the Copyright Act. At the time of writing, Copyright Act C-42 is in effect and Bill C-32, the Copyright Modernization Act is before the House of Commons. The Copyright Act organizes works into four categories: literary, dramatic, musical and artistic. “Choreographic works” are included in the dramatic category.
Under the Copyright Act, exclusive rights are given to the copyright holder(s) for the right to perform the work (including excerpts of the work), reproduction of the work in any medium, distribution of the work and to create derivatives (any work that is derived from your work). Copyright generally lasts for 50 years after the death of the author, after which time it is in “the public domain”.
Copyright law is the same throughout Canada and does not vary from province to province. Copyright is protected in over a hundred countries through means of international copyright treaties.
Legislation is often clarified through experience and precedents established in courts through litigation, resulting in “case law”. There is little case law around choreography, no doubt because there is so little money involved. Artists may value originality or the concept of individual voice, however, these are not really monetized concepts; copyright is driven more by the concept of revenues that can be generated by performances or copying.
In cases of collaborative creation, copyright would usually be shared. Write the agreement down and specify percentage ownership in the work. (You may find it useful to consult the Playwrights Guild of Canada document included in the Resource section.) In cases where Dancers/Interpreters have contributed to the creation of choreography through improvisation or other means, usually they would not be considered co-choreographers, however, their contribution should be acknowledged in writing in program credits. Be mindful that the level of contribution and co-creation can be difficult to quantify and can change during production. (Authorship has been contested by dancer/contributors years after creation of a work.)
When commissioning a choreographic work, either the commissioner or the choreographer could legally own the copyright. Be clear about this in the contract. In general, CADA-ON supports choreographers always owning copyright to their work.
11.3. How is choreographic copyright established?
A work must be capable of being copyright-protected; capable means more than an idea, it’s an expression of that idea. It must also be a new work. The work must be expressed in physical form and be fixated, or recorded. It is harder to think of fixation in an ephemeral form such as dance than in literary forms, however, videotaping is a way to fixate as is notating. Your copyright exists the moment your work is fixated in some way.
You don’t have to register your copyright for it to exist. However, proving your copyright is another thing, therefore, registering copyright can be a good idea. An inexpensive and helpful way of establishing your copyright is by mailing a copy of the work to yourself by registered mail. This is commonly referred to as the “layperson’s copyright”. Mail yourself a video of the dance you have choreographed and don’t open the mail when you get it! An even better way to protect your work is to register it with the Canadian government through the Canadian Intellectual Property Office (see Resources). The cost is $50.
To qualify for registration, the author must be a Canadian citizen or a person ordinarily resident in Canada, or a citizen or subject of or a person ordinarily resident in a country with which Canada has entered into a copyright treaty.
There is a difference between the author and owner of copyright. (We have already referred to the fact that a commissioner could be the copyright owner.) The author never changes; the owner can change. When a contact stipulates that the choreographic work be deemed, “Work made in the course of employment” (Canadian) or, “work made for hire” (U.S. equivalent), be aware that you are selling your copyright because work made as an employee in the course of employment is owned by the employer. For example, if you are a dance teacher employed by a school board, when you leave the particular school where you choreographed a series of dances, the board is the owner of the dances, not you – unless you have attended to your copyright by specifying your ownership in a contract. You are the author but not the owner in this example.
Keep in mind that in the Canadian professional dance community, employment is actually quite rare and self-employment is more often the norm. As discussed in other parts of this publication, know your employment status.
If you sell your copyright, you should receive significantly higher payment for your choreography than if you retain your copyright and license the use of the work. This is because you are forgoing any opportunity to generate revenue by licensing the work in the future. (Be aware that if you choose to sell your copyright, technically you are opening yourself to claims against you that you are infringing copyright should you make a subsequent work based on the work sold. You could be sued for self-plagiarism!)
Even in situations where you as a choreographer sell the copyright, as the author you retain moral rights. Exercising ones moral rights requires the author’s approval before the work can be changed and used in association with a product or cause without the author’s permission. The law prevents the selling of moral rights, however, to get around this, contracts sometimes require that moral rights be waived.
11.5. Copyright Ownership & Dance Companies
Given the above information regarding employment, where does that leave choreographers working within dance companies? Technically speaking, the dance company could own the copyright for choreography made by its Artistic Director (when he or she is an employee) or any employed choreographer. Clarify this. Practice in the Ontario dance community usually is that copyright resides with the choreographer and not the company, so that if the choreographer leaves, they can take their work with them. This requires clarification either in the form of a written Board policy or contractual agreement. Even in cases where companies contract self-employed artists as opposed to employing artists, it is a good practice to clarify who owns the choreographic copyright.
Royalties can be calculated on a variety of formulas including percentage of production budget, box office revenue, per minute rate or flat fee. CADA-ON supports per minute rates for choreographic royalties and recommends $5 per minute per performance. We do so in reflection of the small size of dance production budgets compared to most theatre and to support the relative financial precariousness of dance in general; a per minute rate is a known quantity that will support the choreographer and the producer. We also do so because it is simple and we understand that most self-producing dance artists want to spend more time choreographing than administering.
Understand the difference between “music for pleasure” and “music for your dance practice”. Purchasing a CD does not entitle you to use the music for your own profit - only enjoyment. (Believe it or not, the concept of profit includes dance performances.) You should not use another artist’s artistic product without him or her receiving a fee or providing permission. You can use music in a rehearsal for no charge.
Your first step as a choreographer planning to use music, whenever possible, is to ask the composer for permission. Search on the internet for the composer’s website or publisher. You may find that a royalty is waived or that the composer has set higher fees than the norm. Be aware that some composers often have staff to troll the internet for mention of the composer’s name and take action when illegal use is found. Store your email or written attempts to contact the composer.
If this is unsuccessful, your next step is to go to the website of the Society of Composers, Authors and Music Publishers of Canada (SOCAN) which administers the performing rights for music creators, collects licence fees and pay royalties. Click on “I’m a Music User.”
There is no specific category for dance performances and they fall under SOCAN Tariff 4.B.1. – (Classical Music Concerts). If this seems too irrelevant to your practice, take a look around the tariffs and email SOCAN for guidance. If you are using 4.B.1., you will download the form after the performance and complete it at that time. Go to the SOCAN site for the specifics; however, we would like to emphasize two things: 1) review this during pre-production while you are preparing your budget, and 2) clarify who is responsible for the payment of royalties and licences in your contract. (Please refer to Section 18.104.22.168 of this document.)
As previously stated, copyright generally enters the public domain 50 years after the death of the author or composer (however, there are exceptions to this). If you are using music in the public domain, you should not be subject to a fee, so be sure to make this clear to the venue. If you are presenting a mixed program, however, the producer or presenter will definitely add a surcharge to the tickets for SOCAN if it is a member of the Society.
This document does not provide an exhaustive overview of how choreographer’s can legally use music and we refer you to the SOCAN website in the Resources section and also encourage you to read the information at the Theatre Ontario link in that section also.
Teachers should be aware that use of music for teaching purposes falls under SOCAN Tariff 19. CADA-ON refers you to Dance Ontario, which has an excellent group licensing agreement which is $64 per year for members.
11.8. Choreographing From a Literary Source
There could be a difficult line to establish between being influenced by a literary work and basing a dance on the work. If you are basing a dance on a literary source, you need to obtain the necessary permission. Start by seeking the permission of the author. (See Music above.)
11.9. Photographs of your work
The photographer owns the photograph and the choreographer owns the choreography. Clarify expectations of use prior to the photo shoot and write them down in a letter of agreement or contract. You will likely want the photographer to assign or license you for use of the photographs (see Glossary). The agreement you make will likely influence the photographer’s fee (i.e. if you want total use in perpetuity, expect to pay a higher fee.)
11.10. Video on the Internet
Opinions vary about posting video clips on the internet; some choreographers are concerned that it makes their work rife for theft and others value it for visibility and/or audience-building. Once your work is out there on the internet, it is unrealistic to expect that you will be likely to control the use of the choreography so make your decision based on your priorities. (See Using Music section also.) It is illegal to post a video using that music without a sync license.
It has already been noted that for copyright to apply to choreography, it must be a new work. Staging a traditional dance presents specific issues that should be addressed by the community in question. Come to an agreement before you start work and write it down.