Pirates, Punks and Performers

In the weeks since posting "Who owns a dance?" on this blog, ideas about choreography, copyrights and creative thinking have been the focus of conversations with colleagues and students. I decided to post a more in depth report about the Dance & Technology panel in Chicago.



Part 2 about Dance and Technology by Kate Mattingly

“Who owns a dance?” was posted at gwutrda.blogspot.com the morning I returned from a panel discussion hosted by The Dance Center of Columbia College Chicago that investigated questions about intellectual property and the arts.

In the week since posting, ideas about choreography, copyrights and creative thinking have been the focus of conversations with colleagues and students. I decided to post a more in depth report about the panel, and to start with a question:

What does choreographer Julia Rhoads have in common with VICE magazine?

Both are challenging existing modes of production and seeing what’s possible with a hefty mix of creative thinking and committed action. VICE magazine began when two guys – Shane Smith and Gavin McInnes - touring as a punk band met Suroosh Alvi, recently released from rehab and keeping himself out of trouble by producing a free magazine. These three started VICE. Smith recalls thinking: “we are going to play this small thing for ourselves and if it gets big, fine, but if it doesn’t, it doesn’t.” Today VICE is published in 14 countries and owns a record label, film company, TV channel, a London pub/gig venue, and several book and merchandise deals.

In The Pirate’s Dilemma, author Matt Mason attributes the story of VICE and their free-thinking to a punk attitude. As Smith says “We don’t do the mag for an audience, it’s not like ‘what demographic are we gonna go for?’ ‘Should we put extreme sports in there?’ Cos we don’t actually care. We put in whatever we think is interesting.’”

Smith believes that the philosophy of VICE continues to influence people today: “Punk was about not taking it, not believing what you see on TV or in the newspapers, and I think that definitely carried over, because people get their news from the Internet and don’t believe the major networks. I don’t know if it’s necessarily anarchy, but it’s definitely thinking for yourself.”

Julia Rhoads, a Chicago-based choreographer who organized the Dance and Technology panel that took place October 24, is someone who is also thinking in ways that are fresh and inspiring. She was inspired by Mason’s book as she was creating her performance “Punk Yankees,” and her ability to re-envision traditional formats and to integrate practice and theory make her an innovative risk-taker. She doesn’t have a TV channel or a film company (yet), but like VICE’s founders she is making work that speaks to the moment in ways that are engaging and smart.

As people walked into the theater before her performance in October in Chicago, a twitter feed was posting ideas next to the proscenium, like stock prices on a ticker. When we were twittered to give a standing ovation as the performers entered, we obliged. Such an interjection of current technology and contemporary modes of communication into a dance performance is refreshing. Walter Benjamin’s words in his 1935 essay “The Work of Art in the Age of Mechanical Reproduction” were prescient:

“During long periods of history, the mode of human sense perception changes with humanity’s entire mode of existence. The manner in which human sense perception is organized, the medium in which it is accomplished, is determined not only by nature, but by historical process as well.”

Bonnie Brooks, Chair of the Dance Center at Columbia College Chicago, wrote in the program for “Punk Yankees: “Rhoads is in the vanguard of new millennium dance discourse, asking questions of authenticity and ownership, questions of memory and originality, questions of reference and credit and when is it just okay to dance and not worry about who thought up that move?” Choreographers today understand that performances can function as escape and entertainment, but it can also trigger new ideas. By interacting with the minds as well as the senses of their audience, artists engage their viewers in different ways of seeing the world and our relationships with others. Rhoads accomplishes these diverse tasks.

When she projects Beyonce in the “Single Ladies” video (choreographed by Frank Gaston and JaQuel Knight), next to Gwen Verdon in Bob Fosse’s “Mexican Breakfast,” the similarities are evident. She allows us to realize how cultural appropriation is not 30 years old (Mexican Breakfast was choreographed in 1969) but Helen Tamiris was using songs by African slaves in her “Negro Spirituals” between 1928 and 1941. Ruth St. Denis was “borrowing” from India’s culture in the early decades of the 20th century.

Is this ethical? Is this legal? As Libby Smigel of the Dance Heritage Coalition explains: “When an artist or scholar or curator needs to make use of copyrighted material – whether to create a new piece of art, to build a critique, or to assemble an art exhibit – each field defines reasonable parameters of the Copyright Act’s fair use doctrine (which permits unlicensed use of cultural materials when they’re needed to serve significant cultural or civic needs) and each field sets its internal ethical standards of how to respect or acknowledge the creative contributors whose work they need to use.”

These questions ignited the panel at Columbia College in October. The conversation began with Rhoads describing her work with sampling and the creation of her site, StealThisDance.com. “Who knew that a project website could be so much work?” she said at one point. But the site (created by Ian Hatcher) is excellent. It is clever in how it shows dancers using other people’s “property” - check the “Terms & Conditions” page. It is creative, showing “Fusions” of different forms of dance, like Cheerleading and Butoh. This particular section attracted the attention of William Forsythe. He commented on the site:

“I really appreciate and admire the kind of skillful thinking that made the StealThisDance website possible. Among many things, it is a moving document of the actual economies of culture, as we experience them from within our practice. People like yourself and your colleagues represent for me the brilliant new generation of thinkers who have chosen, thank goodness, to dance.”

Rhoads acknowledges that we live at a moment when dance is hugely popular, visible on television programs and dance competitions, yet the topic of sampling and theft is convoluted. At one point in her performance “Punk Yankees” her dancers sampled Ohad Naharin’s “Minus 16.” Rhoads had intended that they learn the section from watching YouTube, but two of her company members had learned the choreography from a dancer who sets Naharin’s work, and knew the impulses for certain actions. When these dancers performed with the rest of the cast they looked so different from the others on stage that Rhoads needed to change her idea. She had the dancers inform the cast about the sources of Naharin’s movement.

This anecdote is crucial because it points to different meanings of the word “choreography.” Can choreography be taught by replicating external shapes? When choreography means visual pictures, this may work, but it doesn’t work when choreography emphasizes purpose, idiosyncrasies and action – not how a performer looks, but what a performer is doing. In this scenario, imitating shapes fails. Through Rhoads’ example it becomes clear that Naharin’s choreography -- dances which are visually pleasing, kinetically driven – is motored by ideas as well as movements.

Dance is unlike other art forms because it is taught person to person, and often a teacher instructs students by having them copy phrases of movement. What is the difference between being inspired by a teacher or performance and stealing someone else’s work? At one point in the panel discussion Rhoads acknowledged that she has been deeply influenced by artists she has collaborated with and has absorbed their ideas: incorporating their work into her own happens without intent to harm. It is unwitting. In an honest – and humorous – way, she admitted this during the panel: “I have practiced unconscious theft my whole life.”

She is not alone. Talking to colleagues who are choreographers I heard repeatedly that they had seen a dancer “borrow” phrases of movement, or choreographed a piece without realizing how much they had taken from another artist until they saw the piece performed again. Some choreographers expect that dancers absorb and refashion their ideas when they start making their own work, proving “everything is a derivative work.” At other times “misinterpretation advances a heritage.” When an idea is re-framed and re-contextualized it becomes a new offering, a fresh perspective that speaks to artists and audiences.

Two important avenues were identified during the discussion in Chicago: the first that musicians and composers have demonstrated one way of dealing with ownership and copyright and it may not behoove dance to follow this same road. The second avenue encourages dance artists to engage in ethical practices: to acknowledge lineage and to be knowledgeable.

In history, entities like ASCAP (founded in 1914) originally supported fair compensation for artists and their music. Judge Oliver Wendell Holmes said during the first successful lawsuit by ASCAP (taken to the Supreme Court), “If music did not pay, it would be given up. Whether it pays or not, the purpose of employing it is profit and that is enough.”

Today the music industry has become something else entirely. In The Pirate’s Dilemma Matt Mason describes how one note of George Clinton’s “Get Off Your Ass and Jam,” was used in a new record, leading to a (successful) lawsuit by Bridgeport Music in 2005 at a federal appellate court in Nashville against defendant Dimension Films. George Clinton did not receive any money from the case, available here: http://fsnews.findlaw.com/cases/6th/04a0297p.html

George Clinton happens to be a supporter of rappers sampling his records. In the panel discussion in Chicago, composer Richard Woodbury spoke about how, as territories become more porous, the conversation becomes more complicated. Ownership not only has a legal definition, but also cultural, economic and social implications.

The second avenue encourages dance artists to learn about the past: this means understanding the creations of predecessors so as to be aware when an idea is being re-used. (I thought of this watching MOMIX recently at George Mason University’s Center for the Arts. The performance – which happened on Halloween - was candy for the eyes, sweet and tasty, but also deeply influenced by the experiments of Loie Fuller and Alwin Nikolais. With knowledge of Dance History each performance becomes a fascinating way of juxtaposing the past with the now.)

During the panel discussion Dawn Larsen, an Intellectual Property and Entertainment Law Attorney, explained that there is “no case law as it relates to dance and sampling. The copyright laws apply to all forms of creative work. It is clear that choreography can be protected. As in a book, where the individual words are not protected, the sentences and paragraphs are. The same is true in dance, the steps are not owned by the choreography, their design or ordering can be. The rights involve protecting a work and who can reproduce, sell, own, donate and distribute it. The copyright also controls derivative works such as sequels and new contexts, as in a music video made from a song. Copyrights are owned by the author or can be distributed through a license. A royalty is payment for using the work. Infringement is the use of a copyrighted work in any of these ways – without consent. Fair Use laws outline ways in which artists and scholars can use an existing work, but they are murky. The Digital Millennium Copyright Act (DMCA) was designed to protect owners of copyrighted information. For example, Internet Service Providers (ISPs) are not liable for infringement if, upon receiving notice of a potential infringement, the ISP expeditiously removes the allegedly infringing material or disables access to it. Infringement proceedings can be costly, and situations which may qualify as Fair Use are sometimes caught in the middle of organizations which do not have the funds or time to fight legal battles.”

A recent example of this is The Balanchine Foundation’s request that the Ketinoh channel on YouTube take down its entire collection of Mariinsky and Bolshoi performances plus Vaganova classes and exams, because a small fraction of the material contained Balanchine’s choreography. As Smigel of the Dance Heritage Coalition explains: “It’s possible that challenges like this one lack legal weight – especially under Fair Use. If the Ketinoh channel presents the clips in such a way that they are recontextualized, repurposed, or otherwise presented in a manner that adds to our understanding of ballet history, the case may qualify as a Fair Use of the material. Many copyright owners have a policy of challenging any unauthorized uses, and people comply often because they either need the rights-holder’s cooperation at other times or because they fear going to court even if their use is likely to be fair.” In 2006, the rights-holder of Grateful Dead poster art unsuccessfully sued a publisher for including about a half-dozen unlicensed poster images, but the publisher’s claim of fair use prevailed as being one that repurposed the art alongside other historical material.

During the panel in Chicago, scholar and author Susan Manning cited prior examples from Dance History where legal and artistic developments have intersected: in the1880s copyright laws were created, and in 1892 Loie Fuller performed her Serpentine Dance. Soon after she sued an imitator, Minnie Renwood Bemis, and lost because the court decided that a creative work must have a storyline to qualify for a copyright. The judge wrote:

“A stage dance illustrating the poetry of motion by a series of graceful movements combined with an attractive arrangement of drapery, lights and shadow but telling no story, portraying no character and depicting no emotion, is not a dramatic composition within the meaning of the copyright act.” This law would be revised in 1976, but for Fuller, since her choreography did not tell a story, her creation was not protected.

Susan Manning included stories of other choreographers and their legal battles. Ruth St. Denis was sued by a man from India who had taught her a dance which she used in performance. Agnes de Mille thought that choreographers did not earn the royalties they deserved: she was a life-long advocate for artists, thought that dances should be copyrighted, and served as first chairman of the dance panel of the National Endowment for the Arts in 1965.

The “Copyright Act of 1976” made it clear that all original choreographic works were entitled to protection, regardless of their narrative content. And it set forth a
time-frame – 50 years after the death of an author – during which his or her work would be protected. Twenty years on, pressure from large and small rightsholders led to the act being amended. In the “Sonny Bono Copyright Term Extension Act of 1998” terms were extended by 20 years so that after the death of the author, a work was protected for 70 years and for works of corporate authorship, 120 years after its creation or 95 years after its publication.

Today we live in an economically-driven country where the parameters of what is allowed or forbidden are drawn around topics where someone profits. Dance exists under the radar in a way because it lacks the money and product-mobility of other art forms. This lack of attention can be used to advantage by dance artists creating their own terms and avenues for producing and disseminating work. Economic systems are enforced by laws and are rule-driven; aesthetics cannot be litigated. Dance and performance speak to cultural identities and new forms of interacting with societal norms. Choreography sheds light on systems of communication, expression and representation. Dance and performance, designed creatively and disseminated methodically, can generate agency and self-awareness in performers and audiences. As television programs and YouTube videos send dance into millions of homes everyday, attendance at dance events in theaters is scarce. The prevalence of dance in the media opens new ways of engaging audiences. The panel in Chicago was enlightening because it acknowledged the multifaceted field of dance today. Julia Rhoads is already making changes that are significant: her performance – at once real and virtual - took place on the web as well as on stage. Her ideas engage new modes of production, new ways of interacting with artists and audiences, new models for the creation and distribution of valuable ideas.

Lawyer Peter Jaszi who has worked with the Dance Heritage Coalition to define Fair Use practices, believes Fair Use has significance as a mediating doctrine. Understanding how dance material can be used legally and ethically enables artists and archivists to widen access to these materials. More information on the subject of Fair Use can be found in the Dance Heritage Coalition’s “Best Practices in Fair Use of Dance-related Materials.” This thorough guide is a terrific resource for librarians, archivists, curators, artists and anyone who needs to know what constitutes Fair Use. It is available for free from the Dance Heritage Coalition and accessible on-line. http://www.danceheritage.org/publications/DHC_fair_use_statement.pdf