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Kerala School Youth Festival is a state level annual event organised by the Government of Kerala that consists of students competing in various dance, literary and art competitions. More than 25,000 students participate in such events from all parts of Kerala.
A writ petition was filed by famous Kutchupudi artist, Anupama Mohan, claiming copyright infringement by the Kerala State Government through its act of selling copies of the dance performances of Kerala School Youth Festival to outside agencies and thereby reproducing it on the internet in digital format. It is alleged by the petitioner Anupama Mohan that the original soundtrack given to the organisers of the youth festival for playing during the performance on stage has been copied and are sold to outside agencies. The petitioner teaches Kutchupudi dance to students who ultimately go on to perform at the youth festival. The work done by the performers in the State youth festival is authored by the participants and in some cases by the teachers like the petitioner herein. The petitioner has alleged that to decide on appeals arising from the decisions taken by the jury in the competition, the State Government has made arrangements to videograph every event in the Kerala School Youth Festival using high-quality equipment. However, allegedly, these copies are later being secretly given to outsiders for consideration. Petitioner claims that none of the candidates who have performed has given consent in this regard to market their performance for earning profit. According to the petitioner, the petitioner and performers of the dance hold exclusive rights as the first owners of the work done by them. However, the writ petition does not dwell deep into the subject matter of copyright per se and regarding who holds the right of ownership of the dance that is recorded.
Several interesting legal questions arise here. Before understanding the nuances of performer’s rights, it’s imperative to discuss the subject matter of copyright to shape this case. The existing conundrum as to who holds the copyright in a dance video that is recorded by a third party requires judicial scrutiny. The two issues pertaining to the subject matter of copyright are as follows:
A) Whether copyright subsists in a recorded video of dance performance?
B) Who holds the ownership of the dance performance?
Subject matter of Copyright: Analysis
According to Section 2(h) of the Copyright Act, “dramatic work includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film.” As per this section, a work of action means “a work capable of being physically performed before an audience.” One of the fundamental criteria for copyright protection is fixation of work. Copyright can subsist only when the work is fixed in a tangible form. If the works mentioned under Section 2(h) are not fixed but performed, then such works are treated with lesser protection under Section 38 of the Act. In the present case, the dance performances are video graphed by private persons selected by the committee and such recordings are done to avoid complaints about the judgement of the performance at the stage. Whether participants have given consent to record their performance can be decided only based on the rules and regulations pertaining to kerala school kaloltsvam/kerala school youth festival. Notably, fixation through film or videotape records every element of performance, including the interpretation of particular dancers. The result is a copyrighted work more detailed in every respect. In Massine v. de Basil [i], the court was concerned with the ownership of the copyright of the choreography of ballets under a contract of employment. The court found that the work done by a choreographer was by itself the subject matter of copyright. Court held that recorded choreography is the notation of the dancing; the stage dance itself is the choreographic work and therefore subject matter of copyright. This case stands out for the proposition that not only is recorded choreography copyrightable as a choreographic work, but that the musical score, the costumes, and the scenery used with the choreography may also be copyrightable as the choreographic work. Therefore, copyright subsists in a recorded video of choreographic work. However, In India, the definition of dramatic work when read with cinematographic work may tend to be a hindrance for proving criteria of fixation in work. Analysing the definition of cinematograph films under Section 2(f) of the Act it can be understood that all forms of video recordings fall within this definition of ‘cinematography’.
To apply for copyright protection for the choreography work under dramatics, a dancer must record the sequence of steps in writing or ‘otherwise’. The term ‘or otherwise’ has a wide and unclear scope. Besides, there is no other way of proving fixation in choreography other than recording the performance in a video. Therefore, protection of choreographic work is not clear in terms of the Copyright Act, 1957. The ambiguity of the words “or otherwise” and the exclusion of “cinematograph film” makes us question the ambit of this section 2(h) concerning choreography. As explained earlier, the most preferred method for fixing a dance routine in a tangible medium is through video recording. The exclusion of it under this section seems a bit of a dilemma concerning the protection of copyright for dance performances when they are recorded.
Another problem is on the question of authorship i.e., whether the choreographer should be considered the "author" of the film but contributed by the performer? For simplicity, perhaps there should be a presumption that the choreographer has contributed all protected elements of the work, including dance elements, with the burden on a challenger to show otherwise. It can be said that the dancers and the choreographer should be considered joint authors. However, this would be inconsistent with apparent understanding in the dance community, as well as with practices of choreographers in registering their copyrights. In the present case, to say that dance performance falls under Section 2(f), then it is left to the judiciary to decide who is the ‘producer’ of the film and who owns the copyright – Is it the organisers of state youth festival, or the choreographer (the petitioner herein)?
What does Copyright mean for Performers?
There are various other rights available to dancers in India such as the performer's rights covered under Chapter VIII of the Act. The primary difference that exists between copyrighting a dance sequence and performer's rights are that performer's rights allow them autonomy over all the audio and video recordings and any reproduction/distribution/or any other such acts would be considered as an infringement of the individual's performer's rights. Section 38 of the Copyright Act defines performer’s right as - “where any performer appears or engages in any performance, he shall have a special right to be known as the “performer’s right” in relation to such performance.” As per this section performance includes any ‘sound recording or visual recording of the performance’. Section 38A states that the performer has the “exclusive right to authorize to make a visual recording of the performance as well as to the issuance of copies and communicating the work to the public.” In the present case, Section 38 protects the exclusive rights of the petitioner. However, the act of the respondent violates this section. The respondents are selling the dance performances of the participants in digital form abroad and India for a heavy sum. It is alleged that by selling the dance performances, the respondents have earned crores of rupees. Since every performer in the state youth festival has exclusive rights under section 38, the same cannot be taken away by the State Government by distributing the videos without the petitioner/participants consent. In Neha Bhasin v. Anand Raj Anand[ii], the Delhi High Court addressed the question of what would constitute a ‘live performance’. The Court observed that “Every performance has to be live in the first instance whether it is before an audience or in a studio. If this performance is recorded and thereafter exploited without the permission of the performer, then the performer’s right is infringed.” In the present case, the performers clearly did not give consent to resell their performances online for a profit.
Section 38A(2) states that “once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right in the same film: Provided that, notwithstanding anything contained in this sub-section, the performer shall be entitled for royalties in case of making of the performances for commercial use.”This section most certainly defeats the petitioner’s exclusive right protection if the recording of the dance performance by the committee for judging is to be treated as a cinematograph film. However, it is interesting to note that the issue pertaining to the performer’s right has not been raised in the writ petition.
In cases like this, the copyright law does not make a solid distinction between a visual recording and a cinematograph film. In Stichel v. Mendes[iii] France court held that choreography must describe the movement which showcases a culmination of human feelings and expression. The composer of dance conducts the choreography and heads the staff that fulfils their roles for that tenure. Therefore, the credit for dramatic work goes to the choreographer. In Indian Copyright law, there exists a moral right, the right to be recognised as owner and an economic right is a right to claim royalty or right to sell. In case of violation, the onus to enforce his/her rights rests on the owner of the copyright.[iv] In the present case, the petitioner is treated as the owner of the dance choreography and in accordance with the underlying factor of moral rights ‘the person who creates it, owns it.’ Justice Krishna Iyer in Indian Performing Right Society v. Eastern India Motion Pictures[v] made an observation that “the music which has merged, through the soundtrack, into the motion picture, is copyrighted by the producer but, on account of this monopoly, the music composer's copyright does not perish. The twin rights can co-exist, each fulfilling itself in its delectable distinctiveness. Strangely enough, 'author', as defined in s.2(d), in relation to a musical work, is only the composer and s. 16 confides 'copyright' to those works which are recognised by the Act. This means that the composer alone has copyright in a musical work. The singer has none. This disentitlement of the musician or group of musical artists to copyright is un-Indian, because the major attraction which lends monetary value to a musical performance is not the music maker, so much as the musician. Perhaps, both deserve to be recognised by the copyright law. I make this observation only because act in one sense, depends on the ethos and the aesthetic best of a people; and while universal protection of intellectual and aesthetic property of creators of 'works' is an international obligation, each country in its law must protect such rights wherever originality is contributed.”
By drawing a parallel to the observation noted in the footnote of the above judgement by Justice Krishna Iyer, it can be understood that wherever originality is contributed, there exist an obligation to protect rights of the creator of the work. Just like the twin rights mentioned by Justice Krishna Iyer, in the present case the choreographer’s rights and the performers rights can also coexist.
Dance clearly has a long way to go in copyright law. Famous dancers like the petitioner do not want to share their great ideas because they are afraid that someone is going to steal them. In this era of digitalization of artistic performances, the existing copyright law does not offer adequate support to the choreography content. While considering the prayer in the present case, the court must look at what irreparable harm will occur to the petitioner when the respondents record the performances during state youth festival and earn profits by reselling the work of the petitioner without her consent. Artists like Anupama Mohan deserve recognition and appropriate credit. If not, the potential injury would defeat the sanctity of her creative voice.
Earlier in view of the seriousness of this matter, the Kerala High Court had directed the State Government to take a decision to avoid such pilferage. However, even after a gap of six years the State Government has failed to take any appropriate action. As it is perfectly open for the court, exercising its flexible power, to pass such order as public interest dictates, [vi] it would be interesting to see how the Kerala High Court would deal with the issue of copyright for choreography.
[i] MacG. Cop.Cas. (1936-45) 223 (CJ 1938).
[ii] 2006(32) PTC 779 (Del).
[iii] (1911) 1 Gaz. Pal. 193, More J. (T. Civ. Seine).
[iv] Lalgudi G. Jayaraman and Others v. Cleveland Cultural Alliance.
[v] 1977 AIR 1443.
[vi] Shiv Shankar Dal Mills and Ors. v. State of Haryana and Ors (1980)2 SCC 437.
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