The Miniamura Saga - Part 3. by Mathilde Pavis

Minimamura Saga Part 3: Copyrighting Structures

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 third of a series of comments on the copyright framework supporting (or not) Chisato’s Minimamura’s practice. As promised this blog post will be focused on the legal consequences of reusing Minimamura’s scores.

Does performing the notation of a work of dance, but not the dance itself, infringe the copyright the choreographer owns in the piece? This question might seem idiotic or moot. If we take the view that the scores is the perfect mirror image of the work they embody on paper, how could one perform the scores without performing the work they convey? One can’t. (1)

However, as explained previous posts, the situation of the choreographer Chisato Minimamura with regard to her notation system is somewhat different. Her scores do not capture the entirety of the choreographic piece presented to the audience but only specific compositional elements of it such as the spatial lines drawn by the dancers’ bodies travelling across the stage, the rhythm and pace of various segments of the work, and the synchronisation of performers. Finally, the scores records the combination of steps but not the steps themselves, the body, arms and legs movements do not feature in the notation. As a result, one may follow the scores composed by Minimamura but offer spectators a piece looking significantly different from what the notation initially intended to fix. In other words, one set of scores could be the written representation of a virtually limitless amount of distinct choreographic works. This compels us to wonder whether (a) each one of those subsequent re-creations Minimamura’s scores would be an infringement of her first piece or (b) whether those pieces are to be regarded as derivative works or work simply inspired by Minimamura’s practice. Ultimately, what these questions envisage is the possibility for Minimamura to copyright the structure of her work (what is notated by her scores) in order to control its re-use by other dance artists even when they have incorporated their own line of steps into her structure.

For any parts of a work to be protected by copyright, artists must prove that the elements they intend to copyright are the result of their own intellectual input, understood as an ‘item’ bearing the print of their personality. (2) The Courts would then appreciate on a case-per-case basis which works or elements of the work bears their author’s imprint of personality. In this context, litigating Chisato’s case might turn out to be a rather subjective exercise. On the one hand, it could easily be argued that the dictation by the scores of the spatial movements, sequenced synchronisation and rythm form a frame rigid enough for Minimamura’s personality and creativity to shine through any subsequent re-creation or re-performance of her structure. On the other, a less sensitive eye might argue that those parameters are barely perceptible once the individual steps they orchestrate have been replaced by different ones. Finally, a third hypothesis would allow for both propositions to coexist whereby Minimamura’s authorship claims in those derivative works will vary according to the degree of sophistication embodied in her scores. The more complex the scores are, higher the chances are that Minimamura’s personality is present or imprinted in the derivative works. Yet this last option does not remove from the equation the discretion judges may employ to reach their conclusion.

Leaving to one side those considerations, we need to consider whether, in the past, courts have regarded the structure of a work as worthy of copyright protection or at all able to convey, on their own, the intellectual input of their authors. No case law involving choreographic works have explored this hypothesis however, similar questions were brought before judges in the context of magazine headlines, airline booking systems and computer programming. As those news lines of investigation broaden the horizon of our analysis, one must keep an open mind in pulling together the threads which might link Francis Day & Hunter publishers, Easy jet and Chisato Minimamura.

In the Francis Day & Hunter case, the court lists the ‘structure’ of a work as one of the elements to consider when comparing works in the context of copyright infringement. (3) When rulling over the copyrightability of computer software, the court also envisaged the relationship between the structure of a work (or its underlying code) with its visual appearance. In this context it was concluded that: “The programmer uses formulae, algorithms which, as such, are excluded from copyright protection because they are the equivalent of the word by which the poet or the novelist creates his work of literature. However, the way in which all of these elements are arranged, like the style in which the computer programme is written, will be likely to reflect the author’s own intellectual creation and there be eligible for protection”.(4)

Like the computer programmer, with her scores, Minimamura carefully designs the algorithm dancers will follow regardless of the steps they decide to perform. As the Court of Justice of European Union considered this orchestration subject of copyright, (re) performances of Minimamura’s scores may too fall within the boundaries of her legal authorship.

(1) On the relationship between the scores and the work in the case of music see: Bowen JA, ‘The History of Remembered Innovation : Tradition and Its Role in the Relationship between Musical Works and Their Performances’ (1993) 11 The Journal of Musicology 139; Rahmatian A, Copyright and Creativity The Making of Property Rights in Creative Works (Edward Elgar 2011)
(2) 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].
(3) Francis Day & Hunter Ltd v Bron [1963] Ch 587 at 609-10. The same solution was applied when examining the infringement of a musical work in Australia see Emi Songs Australia Pty Ltd v Larrikin Music Publishing [2011] 246 ALR 35 at 50.
(4) SAS Institute Inc. v World Programming Ltd [2011] EUECJ C-406- 10 paragraphs 55.
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