The Miniamura Saga - Part 2. by Mathilde Pavis

The Minimamura Saga – Part 2: Coping with Scopes

The following post is written by a lawyer who was generously invited to observe Chisato Minimamura and her team work with three performers for the purpose of a dance lab in Coventry in June 2014. This post is the second of a series of comments on the copyright framework supporting (or not) Chisato’s Minimamura’s practice.

My last post[1] listed the various copyrightable elements of Minimamura’s practice. Two of them were her notation system and the app built around it. In my previous note, I expressed some doubts about the ‘copyrightability’ of the notation system itself since it is likely to be regarded as a method rather than a creative product. Today’s post questions will assess the ability of Minimamura’s notation system to fix the choreographic work it records to the extent of allowing such work to be copyrighted. It will highlight the uncertainty lying in the relationship between the originality and fixation conditions with regard to their respective (connected?) scope. Indeed, the law requires artists to fix their work in ‘writing or otherwise’ in order to be bestowed copyright (legal authorship).[2] Could Minimamura’s scores be regarded as fixing ‘in writing or otherwise’ her work?

The law does not grant any exhaustive list of the types of fixations it refers to under the umbrella phrase ‘or otherwise’. The jurisprudence came to accept electronic formats (fixation on screen) as well as video and audio recording as suitable ways of captures creative works for copyright purposes. However it refused collages and installations[3] for their lack of durability and permanency.
For the purpose of ‘fixing’ choreographic works, the Laban notation and video records were regarded as suitable by the Courts.[4] Comparing Minimamura’s scores to these two other methods, one striking difference appears: unlike video records or Laban notation, her scores do not capture dancers’ body movement (arm or leg work) but only their combination. Indeed, the scores work in combination with the choreographer’s and performers’ memory of the steps. The only elements scripted by the scores are the sequences of steps, the synchronisation of dancers’ sequences and their the direction of their individual travels on stage.[5]

Because the scores only capture certain aspects of Minimamura’s work, they could be regarded as an incomplete fixation method, thus unsatisfactory from a legal perspective. This conclusion begs the question of the extent to which a work must be recorded to be regarded as fixed legally speaking. Can the partial fixation of the work suffice? If so, which elements of the work may be left out without failing the fixation condition?

I do not have a straight answer to this first question but only suggestions of answers. The main reason for that is the fact that the dispositions providing the fixation condition do not specify its scope. Most of the discussion regarding the condition revolves around the issue of permanence of the fixation methods rather than their scope. Here, permanence is no issue, only the scope is. However, we might find in copyright law’s rationale and core principles some hazy pointers towards a possible answer.
Copyright has been enforced to protect and encourage creativity. As such, only ‘original’ works are protected. Are regarded as ‘original’, works which bear their authors’ intellectual input according to the latest European jurisprudence on the topic.[6] UK Courts have married their own doctrine with this new European ‘spin’ by referring to original works, as products of their authors’ intellectual skills and efforts.[7] However, it has been made clear from the early days of copyright, that authors’ copyright only covers their original input represented in the work and not the whole work itself. Creative works may use common place ideas or borrow elements from previous works, therefore those unoriginal elements must remain available to future authors in the name of the freedom of expression. As a result of this logic, the print of a book may fix both protected (original) and unprotected (unoriginal) elements of its author’s story. Linking this observation to our initial question on fixation, what if the fixation of a work is limited to the original contribution of the author instead of the piece in its entirety? The fixation of the work would be partial with regard to the boundaries of the work as a whole but complete as far as its (legal) originality is concerned. Would the fixation requirement be fulfilled? Do the scopes of the originality and fixation conditions match one another? Do artists have to capture their original contribution or the entirety of their work, including unoriginal elements, to obtain copyright protection?

As explained before, Minimamura’s scores offer an incomplete image of her work, but it could be argued that it gives a full fixation of her input as choreographer. Indeed, the only missing elements in the scores, is the script of the individual choreographic steps. Such steps are the only elements of the choreographic piece which are not copyrightable. Regarded as choreographers’ alphabets or building blocks, they were considered as un-copyrightable in order to preserve future artists’ creativity. In this context, by leaving them out, Minimamura’s scores focuses on capturing her own intellectual original input as choreographer which seems to be the only input copyright would cover anyway. If the scope of the originality condition was to match the scope of the fixation requirement, the choreographer’s scores would be a fine recording method. Could this claim hold in court?

If the argument can be sustained to certain extents, one practical issue remains. The fixation condition may also be seen as a procedural requirement enforced to ease the litigation of disputes where infringement claims are made. Requiring creative works to be fixed provide parties and judges with a tangible product to refer to when assessing the nature and scope of alleged infringements. Without a record of all the elements of the work, including its non-original aspects, judges might found partial fixation as unhelpful during such proceedings. Although some might regard partial fixation or fixation limited to the author’s original input as abiding by copyright’s philosophy, it might not satisfy the needs of the law in practice.

When questioning the overlap in the scopes of fixation or originality, this note assumed that the elements transcribed by Minimamura’ scores, the coordination of steps, were creative enough to be regarded as original per the copyright agenda. In essence, such scores transcribe the structure of Minimamura’s pieces (without the individual steps). Can a work’s structure be original enough to be copyrighted? Put differently, can the skeleton of a work (i.e. sequences of steps) be original enough to be copyrightable independently from its flesh (i.e. the steps themselves)? My next post shall attempt of offer solutions to this questions by bringing together the unexpected common threads between the hypothetical claims of the choreopher Chisato Minimamura and the recent disputes opposing airline companies in the Navitaire v Easyjet case.

[1] ‘Works, Scores and Fixation in Dance’ dated 14/10/2014
[2] CDPA, Section 3(2)
[3] Creation Records Ltd. and others v News Group Newspapers Ltd [1997] EWHC Ch 370
[4] Both of these fixation methods have been criticised for their cost or lack of 3-dimensional aspect. See Lauren B. Cramer, ‘Copyright Protection for Choreography: Can it ever be 'En Pointe'? Computerized
Choreography or Amendment: Practical Problems of the 1976 U.S. Copyright Act and Choreography’ (1995), I SYRACUSE J. LEGIS. & POL. 145, 159 ; Katie M. Benton , ‘Can Copyright Law Perform the Perfect Fouetté?: Keeping Law and Choreography on Balance to Achieve the Purposes of the Copyright Clause’ (2008) 36 Pepperdine Law Review 1, 59, 87-89 ; Krystina Lopez de Quintana, ‘The Balancing Act: How Copyright and Customary Practices Protect Large Dance Companies Over Pioneering Choreographers’ (2004) II VILL. SPORTS & ENT. L.J. 139, 141-42 (2004). T 159, 160 : "Video recordings often fail to capture the choreographer's actual intent, since a film version of the work significantly depends on the skill and accuracy of the dancer." (footnote omitted)).; Joi Michelle Lakes, ‘A Pas de Deux for Choreography and Copyright’, 80 N.Y.U. L. REV. 1829, 1840 (2005)., at 1855 ; Lopez de Quintana, supra note 50, at 160
[5] See previous post for a description of the scores. Supra n. 1.
[6] Infopaq International A/S v Danske Dagblades Forening (Infopaq) (C-5/08) [2009] E.C.R. I-6569; [2009] E.C.D.R. 16 at [33], [38]. See also Bezpečnostní softwarová asociace - Svaz Softwarove Ochrany v Ministerstvo Kultury (C-393/09) [2011] E.C.D.R. 3 at [45]. What is not protected is expression, which is limited by its technical function. See SAS Institute Inc v World Programming Ltd (C-406/10) [2013] Bus. L.R. 941 at [38]–[40; Painer v Standard VerlagsGmbH (C-145/10) [2012] E.C.D.R. 6. In the UK see SAS Institute Inc v World Programming Ltd [2013] EWHC 69 (Ch); [2013] R.P.C. 17 at [27].
[7] For an example of interpretation of the European doctrine in UK law, SAS Institute Inc v World Programming Ltd [2013] EWHC 69 (Ch),[2013] RPC 421,[2013] IP & T 906

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