Intellectual Property ("IP") is not my practice interest, but I was helping a non-profit with a project and wanted to share some of the bigger chunks of information I found. The non-profit is a dance company that wanted to know how to protect the IP rights of their performances.
The IP involved with choreography, or more broadly performing arts, is protected by copyright under the Copyright Act of 1976. Copyright owners have the (mostly) exclusive right to perform, display, and publish their work. A copyright owner could be the individual author, a separate claimant by agreement or employment, or an organization. Although copyright attaches at the authorship of a work, registration with the U.S. Copyright Office ("Office") is required prior to the pursuit of any infringement litigation. Unless a copyright is a work made for hire, a copyright endures for the life of the author plus seventy years. Unless a copyright is renewed, when the copyright period comes to an end the work will enter the public domain and will be available at anytime to anyone be used in anyway (without permission and without paying fees).
Published and unpublished dramatic works can be submitted for registration via electronic process at eCO. eCO's interface is enormously user friendly and has advantages over paper filing: quicker turnaround (approximately nine months contrasted to twenty-two), cheaper ($35 contrasted to $50), and allows the user to track the status of the application for registration. During the electronic application a copy of the work must be sent to the Office. In the case of choreography, the copy should either be a video or precise description of the work. If the work is published, two physical copies must be sent to the Office after submitting the electronic application for registration (eCO will produce a shipping slip to be included with the physical mail). If the work is unpublished, only one copy is necessary and can be submitted electronically via eCO.
After the application is submitted, the fee is paid, and a copy of the work (or copies in the case of a published work) is appropriately submitted to the Office, the Register of Copyrights ("Register") reviews the application and work. The applicant will either receive a certificate of registration with an official seal, or a notice of refusal. If the applicant receives a certificate, the registration is effective the day the application, the fee, and the copy of the work were received in acceptable form to the Office.
"Publication" vs. "Performance." While a dance recital with a public audience is a performance, it is not a publication. "Publication" in this regard requires the performance to be released in a medium to the general public without any knowledge of what that public's intent is as regards the distribution. So for example, if performances were to be placed on a DVD and sold online; this is publication. "Publication" is not satisfied, however, by releasing the performance in a medium to a known group of limited size which has a known and limited purpose for that distribution (that, in fact, is called a "limited publication").
A "Work Made for Hire." The duration of the copyright is slightly different, but who owns the copyright is completely different. To determine if a work is made for hire, first determine if the author is an employee or an independent contractor. An author might be an employee if the employer has control over the work and over the author. If the author is an employee, you must determine if the work was created within the scope of the author's employment. If you answered yes to both inquiries, then the work is probably a work made for hire. Alternatively, the author may be an independent contractor whose work was especially commissioned under an agreement where the work is exchanged for compensation, etc. If so, it must be determined if the work satisfies one of several statutory categories: "for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas." Again, if both inquiries are satisfied, then the work is probably a work made for hire. Unless an agreement exists saying otherwise, works made for hire give the both the authorship and the copyrights to the employer. Works made for hire are protected by copyright for ninety-five years from the date of publication or one hundred and twenty years from the date of creation (whichever occurs first).
The U.S. Copyright Office help line is accessible at (202) 707-3000 (M-F, 830a-5p EST).
Library of Congress ("Library"). Among the published works sent to the Office for registration, the Library has discretion over what it will include in its collection. The Library does not take unpublished works. Any published works accepted by the Office for registration that are not chosen by the Library will be retained on file with the Office for the life of the copyright.
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The IP involved with choreography, or more broadly performing arts, is protected by copyright under the Copyright Act of 1976. Copyright owners have the (mostly) exclusive right to perform, display, and publish their work. A copyright owner could be the individual author, a separate claimant by agreement or employment, or an organization. Although copyright attaches at the authorship of a work, registration with the U.S. Copyright Office ("Office") is required prior to the pursuit of any infringement litigation. Unless a copyright is a work made for hire, a copyright endures for the life of the author plus seventy years. Unless a copyright is renewed, when the copyright period comes to an end the work will enter the public domain and will be available at anytime to anyone be used in anyway (without permission and without paying fees).
Published and unpublished dramatic works can be submitted for registration via electronic process at eCO. eCO's interface is enormously user friendly and has advantages over paper filing: quicker turnaround (approximately nine months contrasted to twenty-two), cheaper ($35 contrasted to $50), and allows the user to track the status of the application for registration. During the electronic application a copy of the work must be sent to the Office. In the case of choreography, the copy should either be a video or precise description of the work. If the work is published, two physical copies must be sent to the Office after submitting the electronic application for registration (eCO will produce a shipping slip to be included with the physical mail). If the work is unpublished, only one copy is necessary and can be submitted electronically via eCO.
After the application is submitted, the fee is paid, and a copy of the work (or copies in the case of a published work) is appropriately submitted to the Office, the Register of Copyrights ("Register") reviews the application and work. The applicant will either receive a certificate of registration with an official seal, or a notice of refusal. If the applicant receives a certificate, the registration is effective the day the application, the fee, and the copy of the work were received in acceptable form to the Office.
"Publication" vs. "Performance." While a dance recital with a public audience is a performance, it is not a publication. "Publication" in this regard requires the performance to be released in a medium to the general public without any knowledge of what that public's intent is as regards the distribution. So for example, if performances were to be placed on a DVD and sold online; this is publication. "Publication" is not satisfied, however, by releasing the performance in a medium to a known group of limited size which has a known and limited purpose for that distribution (that, in fact, is called a "limited publication").
A "Work Made for Hire." The duration of the copyright is slightly different, but who owns the copyright is completely different. To determine if a work is made for hire, first determine if the author is an employee or an independent contractor. An author might be an employee if the employer has control over the work and over the author. If the author is an employee, you must determine if the work was created within the scope of the author's employment. If you answered yes to both inquiries, then the work is probably a work made for hire. Alternatively, the author may be an independent contractor whose work was especially commissioned under an agreement where the work is exchanged for compensation, etc. If so, it must be determined if the work satisfies one of several statutory categories: "for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas." Again, if both inquiries are satisfied, then the work is probably a work made for hire. Unless an agreement exists saying otherwise, works made for hire give the both the authorship and the copyrights to the employer. Works made for hire are protected by copyright for ninety-five years from the date of publication or one hundred and twenty years from the date of creation (whichever occurs first).
The U.S. Copyright Office help line is accessible at (202) 707-3000 (M-F, 830a-5p EST).
Library of Congress ("Library"). Among the published works sent to the Office for registration, the Library has discretion over what it will include in its collection. The Library does not take unpublished works. Any published works accepted by the Office for registration that are not chosen by the Library will be retained on file with the Office for the life of the copyright.
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