Event: Legal Issues for Dance Companies

The New York Foundation for the Arts and the New York State Bar Association are presenting a free, all-day symposium on legal issues for dance companies at NYU School of Law (RSVP required). Topics include copyright ownership of dances, business entities and accounting, and contracting with collaborators. More information at http://www.nyfa.org/level3.asp?id=841&fid=2&sid=78. I will be there for sure!

Judges are dance theorists too

                (photo: alexbcthompson)

How many people learn the steps from the Single Ladies video by watching Beyonce on YouTube? Well apparently, a dance you learn by looking at a YouTube video is not choreography, at least not under New York tax law.

New York imposes a four percent sales tax on admission charges at “places of amusement.” However, charges paid for admission to live, choreographic performances are exempt from the tax. The Tax Appeals Tribunal of New York recently decided a case in which Nite Moves, a strip club in an Albany suburb, claimed that its cover charges are not taxable because the pole dancing routines at its establishment are choreographic performances. To support this argument, Nite Moves turned to Judith Lynne Hanna, a specialist on exotic dance and adult entertainment. Dr. Hanna reviewed DVD footage of exotic dance routines performed at Nite Moves and stated that they indeed were live, choreographed performances.

The tribunal differed. Strangely, it seemed to take the view that for a dance routine to be a live choreographed performance, the performer must have actually created the steps.

“With regard to whether it is a choreographed performance, we note that the record sets forth how the dancers help each other when they are getting started, how they view other dancers on YouTube and practice the dances they see on the internet. . . . We question how much planning goes into attempting a dance seen on YouTube. . . . Dr. Hanna said, inter alia, that she saw a range of movements typical of adult entertainment elsewhere and that she saw the individual creativity of the dancers. It is unclear how, based on a 22 minute DVD, Dr. Hanna could divine a particular dancer's 'creativity' as opposed to a dancer on YouTube, for instance, from which the performance may have been copied.”

This is odd. According to the tribunal, the YouTube routines may have been choreographed, but when they are replicated by other dancers, they are not choreographed. The question for the court should not have been “how much planning goes into attempting a dance seen on YouTube,” but how much planning went into creating the dance seen on YouTube. The tribunal's decision also happens to be at odds with the practice of many dance companies that often have dancers consult video footage to learn choreography. (Actually, judges routinely throw logic out the window when strippers are around. For a Freudian reading of why this might be so, you might enjoy Amy Adler's Girls! Girls! Girls!: The Supreme Court Confronts the G-String).

Strip clubs were probably not among the intended beneficiaries of the tax law’s exemption for choreographed performances. But if Nite Moves is not entitled to the exemption, the reason cannot be that its dancers get their routines from YouTube.

The tribunal's decision is here.

06/04/2010 Update: Alistair Macaulay, chief dance critic of The New York Times, has declared the male pole dancing routine in Cirque du Soleil's latest production, Banana Shpeel, "the most enchanting new choreography around Broadway."  

Tino Sehgal's Immaterial Art

The New York Times Magazine has a very interesting article about Tino Sehgal, the Berlin-based conceptual artist. Sehgal experimented with dance early in his career, but his recent creations, which he calls "staged situations," are conceived as artworks rather than theater, and have been acquired by the Tate and the Museum of Modern Art, among others. Nevertheless, his work builds on the ephemerality of dance (unless it's recorded, a dance performance is gone as soon as it is performed) and takes that quality to its logical extreme. Sehgal is adamant that his work be completely intangible: it cannot be documented in any way, which means it can't be photographed or publicized and is bought and sold without involving any objects whatsoever.

The only objects in the works themselves are human beings. For example, in This situation, the viewer is greeted by six people who intone "Welcome to this situation" in unison and then engage in a conversation inspired by a quote spoken by one of the six, all the while making slow, tai-chi like movements and occasionally including the visitor in the discussion. The process is repeated each time a new visitor enters the gallery.

The legal aspects of buying and selling this art can be confounding. The Times writes: "Since there can be no written contract, the sale of a Sehgal piece must be conducted orally, with a lawyer or a notary public on hand to witness it. The work is described; the right to install it for an unspecified number of times under the supervision of Sehgal or one of his representatives is stipulated; and the price is stated. The buyer agrees to certain restrictions, perhaps the most important being the ban on future documentation, which extends to any subsequent transfers of ownership. 'If the work gets resold, it has to be done in the same way it was acquired originally,' says Jan Mot, who is Sehgal’s dealer in Brussels. 'If it is not done according to the conditions of the first sale, one could debate whether it was an authentic sale. It’s like making a false Tino Sehgal, if you start making documentation and a certificate.'"

So if you document the work in any way, you've suddenly got a forgery on your hands. Sehgal isn't kidding when he says his work is ephemeral.

Two of Sehgal's works will occupy the entire Guggenheim rotunda, January 29 - March 10, 2010. Information about the exhibit is here.

Related post: Another reason for choreographers to videotape their work.

The Smooth Criminal's Patented Shoes

Michael Jackson and his dancers were able to lean forward beyond their centers of gravity (CG in the drawing below) during live performances of "Smooth Criminal" thanks to specially designed shoes patented by the King of Pop:

U.S. Patent Number 5,255,452, filed by Michael Jackson in 1993, explains that “in the past, a professional entertainer, one of the inventors herein, has incorporated dance steps in his recorded video performances, wherein he and other dancers would lean forward beyond their center of gravity, thereby creating an impressive visual effect. This effect was accomplished by the use of cables connecting a harness around the dancer’s waist with hooks onstage.… However, since this requires stagehands to connect and then disconnect the cables, it has not been possible to use this system in live performances.” The shoes solve this problem by allowing the performer, “by engaging the shoes onto an upstanding post positioned to project upwardly from a stage at a predetermined time, to lean forwardly or put his or her center of gravity beyond the front or rear of his shoes, thereby creating the desired gravity defying interesting effect.”

In a description of similar existing patents, Michael Jackson’s patent mentions footwear worn by astronauts which can be locked onto a rail to aid them in working in a zero-gravity environment.

I would provide a link to a youtube video showing the shoes in action, but my ability to do so without committing copyright infringement is an unsettled question.

(via Boing Boing Gadgets)

A Word to the Wise: "We're Not in the Sandbox"

A New York Times report about a contract dispute between a choreographer and the 92nd Street Y highlights how important it is for artists to have an outside eye scrutinize the agreements they enter into.  The Y commissioned Pavel Zustiak, a Czech choreographer, to create a work to be premiered at the Y's Harkness Dance Festival in New York City, and included a clause in its contract that forbade Mr. Zustiak from presenting any work in New York for a period of six months before and three months after the premiere.  Theaters frequently have this type of clause in their contracts with performers.  Mr. Zustiak ran afoul of the agreement when, thinking that the exclusivity provision applied only to performances of the Y-commissioned work, he scheduled a performance of one of his other works at a Manhattan venue less than three months prior to the scheduled Y performance.  Mr. Zustiak ended up paying the Y to guarantee at least $8,000 in box office receipts, and lost $1,200 in the process. 

The article also mentions the ordeal of choreographer Laura Peterson, who lost thousands as a result of not having a contract with a theater that cancelled a production of her show at the last minute.  The moral of the story is that artists need to put their agreements into writing and have someone qualified review them.  To quote one theater director: “From the perspective of an artist, you’re always thinking, ‘I’m so poor, how can anybody be taking money from me, that’s so mean.’  But it is a business; we’re not in the sandbox.”

Another Reason for Choreographers to Videotape Their Work

Many choreographers are understandably wary of videotaping their work because they don’t want someone to use the recording to steal their choreography. Especially for choreography that is new or otherwise not well known, the chances are high that someone who plagiarizes it will be able to present it at a venue without anyone in the audience realizing that the choreography is stolen. However, besides the fact that not videotaping choreography isn't always the best business move (is preventing plagiarism more important than building an audience by publicizing your work?), it's not wise from a legal standpoint either. Copyright law only protects choreography that has been captured on video (or written down using dance notation). That means that choreographers need to record their dances if they want to have legal recourse in the event that someone comes along and copies their choreography without permission.

In order for a work to be protected by copyright, it has to be fixed in a “tangible medium of expression.” Such media include paper, canvas, zeros and ones (in the case of software and digital recordings), film, fabric, stone, concrete, bottles and cans… and on and on and on. Choreography that exists only in the brains of the dancers who perform it has not been fixed, and therefore is not protected by copyright. The same goes for a song that a musician performs at an open-mike but never writes down or records.

To provide themselves with a remedy against unauthorized copying, choreographers need to videotape their work. There’s no need to share the recording with anyone (although registering the copyright with the Copyright Office at the Library of Congress by filling out a form and sending in a video is a good extra precaution, not to mention a prerequisite for suing someone for copyright infringement; the whole process, including video submission, can now be completed online: www.copyright.gov/eco/index.html).

Remember, no recording equals no copyright protection!