I photographed a child's dance poses in my studio while the teacher was coaching her. I do realize that I own the copyright to the photographs, but what I was surprised was that the dance teacher informed me that I cannot display these images without a written permission from her as she owns the copyright on the poses.
Is she just blowing hot air or can a teacher claim copyright on dance expressions/poses ?
I don't really understand how the poses could be so different than any other instructor's to warrant copyrighting them. Then again, if the instructor was posing the child and all you were doing was pressing the shutter....it would make a little sense, since the instructor is providing more creative essence to your photo. pretty hard to prove though.
I would ask her for verification of the copyright from the copyright office. It may be so that works of art are de facto copyrighted at the time of creation, it is meaningless without registration. Chances are she is as unknowledgeble about the law as most people and thinks that a pose is copyrightable as soon as she thinks it up. Choreography is copyrightable, but I doubt if a static postion is.
If she caught someone in her pose in public, could she sue?
Googling on the question turned up this information:
"NEW DELHI: The United States has denied granting patents and trademarks for the ancient Indian practice of yoga, popular among western celebrities, a statement from the US embassy said Tuesday.
"Recent media reports alleging that such patents exist are inaccurate," the statement said.
The US government has conducted a search of all patents issued and no patent on yoga, "asans" or exercises have been identified, it said."
This has no connection to dance poses, though it is somewhat similar.
Rick's suggestion that you ask for written proof from the US Copyright Office is valid. If she claims to have a copyright, she needs to show it.
I hate to say this, but choreography can indeed be copyrighted. A "dance pose" is one moment in a choreographed dance, and can, therefore, be copyrighted.
I've worked with numerous dancers and dance companies over the last 40 years in numerous capacities, and I've seen it.
"Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:
1 literary works
2 musical works, including any accompanying words
3 dramatic works, including any accompanying music
4 pantomimes and choreographic works
5 pictorial, graphic, and sculptural works
6 motion pictures and other audiovisual works
7 sound recordings
8 architectural works"
A "choreographic work" is a dance where a choreographer tells the dancer how to move, when to move and where to move. There may or may not be music or other accompanying sounds. A choreographer can simply instruct the dancer to make one move, and that is considered a "choreographic work" and that can be copyrighted.
In the case of the dance teacher telling the student how to pose, the teacher is acting as choreographer, and the student is acting as the dancer. The photographer is the audience.
Hate to say it, she may have a case.
BTW, this is the same law that protects photographs.
In a case like this I'd like to think the choreographer wouldn't have a leg to stand on - however she posed it - but I know a commercials director who lost a lot of money (over $1,000,000) trying win a similar copyright case here in the UK. Basically, it came down to who was the boss on the shoot. If you paid the instructor to do her job and told her what you were after, you are the boss and it's your copyright, but if not, then she's in a strong position.
Best option is, ask for written permission from all concerned.
liamh wrote:
In a case like this I'd like to think the choreographer wouldn't have a leg to stand on - however she posed it - but I know a commercials director who lost a lot of money (over $1,000,000) trying win a similar copyright case here in the UK. Basically, it came down to who was the boss on the shoot. If you paid the instructor to do her job and told her what you were after, you are the boss and it's your copyright, but if not, then she's in a strong position.
I'm not an IP attorney, but I believe in the US that's not the case. If it were, then the moment an "Art Director" walked into the studio, the photographer's right to claim the copyright on the photos being shot would go out the window. It's only in a specific instance, called "Work for Hire," where the creator of the work (photo, dance, architecture, whatever) gives up their right to claim copyright on the art work can someone else claim it.
In this case, the only thing on the positive side for the OP is the fact that while the teacher may be able to legally block the OP from displaying the photos, the OP can do the same to the teacher. Turnabout is fair play.
and, if the photographer were to make a minor adjustment to the pose so that it would be 'more photogenic', would the photographer then become the choreographer?
A pose is NOT subject to copyright protection. A photograph of the pose would be, but the pose itself would only be an element of the "work" that is copyrighted. Who owns the copyright in the photo is a very different question from whether or not a pose is copyrightable. Similarly, choriography is NOT copyrightable itself. The "performance" of the choriography fixed on video or film can be copyrighted, but that does not provide any protection for the individual choriographic elements.
As for who owns this photo, it really should be quite simple. Did the instructor hire you to document her instruction technique? If not, you own the copyright in the photo. For the instructor to make a lcaim under U.S. copyright law, she would have to show that you were producing a "work made for hire". Not likely.
Edited by mostlyprudent on Aug 21, 2008 at 07:47 AM GMT
I would go with the choreographer, directing the subject in movement (which would include being stationary), being the creator and therefor have the copyright. YMMV
Interesting discussion............but IF the pose (as a pose, not as a photograph) can be copyrighted......the dance instructor/coreographer will have to abide by the law and actually submit a copyright registration within 90 days of generation/use of the photograph. To prevail in court, however, he/she would also have to show that it was an original pose not otherwise in use by any other firm/activity prior to her registration of the pose (also see Jerryrock's comment above).....which will probably be impossible if the photographer has a good lawyer...
Since the teacher was working for the studio owner/photographer, and depending on the employment contract, a strong case could probably be made that the work generated by the teacher was "work for hire" and the studio owner owned all rights, especially if the student was paying the studio owner directly and not the teacher.
Bottom line, expensive for all, and most likely not worth the fight, as it would have to be settled in federal court.
