Michael Jackson and the moonwalk: copyright and dance

WHILE the Intellectual Property Office of the Philippines (IPOPHL) declined to comment on the cease-and-desist letter sent by Ballet Philippines to the Cultural Center of the Philippines in relation to Itim Asu — a dance choreographed by National Artist Alice G. Reyes — since “it may result in conflict of interest in the event that the case is filed before the IPOPHL for adjudication,” still, in this June 14 e-mail to BusinessWorld, IPOPHL’s Bureau of Copyright and Related Rights did explain the finer points of copyright.

Q: Who owns a piece of creative work and what are some of the misconceptions about intellectual property?

A: The creator or the author is generally considered the owner of the copyright.

Note, however, that ownership of the copyright is different from ownership of the object of copyright (the actual work itself).

This follows from the legal principle that copyright is distinct from the object of copyright. This means that a person may own an object that is subject of copyright but is not the owner of the copyright thereof. Example: one may own a copy of a book but this does not mean that the owner of the copy of the book also owns the copyright of the book.

Generally, it is the author or creator of a work who owns both the actual work and the copyright over it from the moment of creation.

However, there are certain cases wherein both may be owned by another. For example, when a work is created by an employee during and in the course of employment, it is the employer who owns both the work and the copyright, if the work was the result of the employee’s regularly assigned duties, unless there is an express or implied agreement to the contrary.

There may also be instances where the copyright is owned by the author/creator while the actual work is owned by another. For example, the copyright over the contents of a letter is owned by the writer while the actual letter itself is owned by the person to whom it is addressed.

Q: How does the Philippines compare to other countries when it comes to artists’ rights over their work?

A: The Philippines is at par — if not better — than most jurisdictions when it comes to the legal framework for artists’ protection over their work. Artists’ copyrights are laid down in the Intellectual Property Code (IP Code). It grants both exclusive rights and moral rights to creators of works. It even grants protections to holders of related rights, i.e., performers, sound record producers and broadcasters. The rights granted by the IP Code are in accordance with international treaties and conventions, most of which the Philippines is a contracting party to.

Q: What are the unique considerations for dance/choreography that set it apart from other works of art that can be copyrighted?

A: The choreography is what is protected.

Traditionally, dance is protected when it is written (“fixed”) in the form of ballet notation.

Nowadays, it is common for the copyright of a choreographic work to be registered by means of capturing it in an audiovisual work or fixed by recording it.

In this case, the audiovisual work is not the main work but only the means of capturing the choreography in a tangible medium for purposes of depositing it since copyright registration requires the deposit of copies of the copyrighted work for archival purposes. i.e., at least in the Philippines, there is no explicit requirement (silent) for a choreography to be fixed; but it needs to be fixed in case the choreographer wants it to be registered.

The silence may have been caused by the dropping of the requirement of fixing choreography in the Stockholm Amendment of the Berne Convention.

Additionally, for dance, like music, choreography can be reduced to writing as in the Benesh Movement Notation or Labanotation wherein a choreographer can document his or her creative work in a fixed and tangible medium through the method of recording bodily movements.

This is described as a system for analyzing and recording human movement. The inventor of Labanotation was Rudolf von Laban. He was known to be the central figure in European modern dance and developed his notation ideas on movement in the 1920s.

Q: Could Michael Jackson have copyrighted the moonwalk?

A: No. The moonwalk is only a dance move, not a choreography. Being merely an individual move, it is not copyrightable.

While the moonwalk is closely associated and popularized by Michael Jackson, it is considered as a social dance step or simple routine because according to the US Patent Office, the elements of a copyrightable dance work includes “rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage; a series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole; a story, theme, or abstract composition conveyed through movement; a presentation before an audience; a performance by skilled individuals; and musical or textual accompaniment.”

However, MJ does hold a patent for the shoes that allowed him to perform his famous “anti-gravity lean” move as seen in the music video of “Smooth Criminal.” See here: https://patents.google.com/patent/US5255452A/en — Sam L. Marcelo