- When a dance is re-mounted after its original production and presentation, royalties must be paid to the Choreographer for performance, unless some other agreement has previously been negotiated. It is the responsibility of the Producer to ensure that the necessary permissions and agreements are in place (see Rights and responsibilities of the Producer 3.).
- Royalty fees pertain to the rights of mounting the work, and are negotiated outside of the original choreography fee; they are based upon the length of the work and are paid out per performance: 1% – 10% of the original fee paid for the work.
- Ownership: Any contract engaging the services of a Choreographer must stipulate which party has the rights to the completed work. Here are some examples of typical royalty negotiations:
(a) Work created by the Choreographer is the property of the Engager who retains the right to remount at any time.
(b) Work created by the Choreographer is the property of the Choreographer who retains the right to remount or license the work to another party.
(c) Work created by the Choreographer is the property of the Engager for a negotiated period of time and the right remains with the Choreographer to remount or license the work to another party.
- Legislation: 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 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 the 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/West supports choreographers always owning the copyright to their work.
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 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. 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.
Author vs. owner: the difference between the author and owner of the copyright is the author never changes; the owner can change. (We have already referred to the fact that a commissioner could be the copyright owner.) When a contract 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.
Copyright ownership and 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 they are an employee) or any employed choreographer. Clarify this. Practice 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.
- Keep in mind that in the Canadian professional dance community, employment is 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 one's 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.