Hetty Blades
The relationship between ontology and copyright has been explored by many scholars (eg. Hick 2017; Kraut 2016; Pakes 2020; Van Camp 2006, 2019; Conroy 2013; Wilson 2010; Mũnoz 2023; Biagioli-Ravetto and Ravetto-Biagioli 2022). Copyright law demonstrates a particular ontological position, albeit implicitly. For example, in the USA, The Copyright Act of 1976 provides copyright protection for original works that have been fixed (Johnson 2021: 1242). To receive copyright protection, a dance must qualify as a “choreographic work[]”. (Johnson 2021: 1243; Van Camp 2019). There is a distinction made between works and ‘social dances and simple routines’. Although Johnson points out that the copyright office recognises that this is a continuum (2021). She notes that while “ballets, modern dances, and other complex works” mark one end of the spectrum, “social dances, simple routines, and other uncopyrightable movements” fall at the other end.” (Johnson 2021: 1244). Despite there being no hard distinction between works and social dances and routines, the 1976 definition marginalises dancers whose practices are viewed as ‘social dances’ and ‘simple routines’ (see Kraut 2016, Boffone 2021, Pakes 2020, Johnson 2021). In particular, artists of colour have been unfairly treated in issues of ownership in both legal and social issues contexts (see Kraut 2016, Davis 2022, Johnson 2021, Boffone 2021, Pakes 2020, Mũnoz 2023).
Already, with the distinction between works and social dances and simple routines, we have an implied assertion about what does and doesn’t constitute a ‘work.’ This is more than definition, it makes an ontological claim ie. that works are non-social dances and are different to ‘simple routines’, implying they involve some more complexity than a ‘routine’.
Returning to Hanagami’s case against Epic Games (see Ontology and Ownership: Part One), Karen Gover explains that the case was initially dismissed on the basis that the emote did not display ‘substantial similarity’ to Hangami’s choreography (Gover 2023). However the appeal found that the:
“district court incorrectly analyzed Hanagami’s choreography as a series of unprotectable “poses,” rather than as a movement sequence that includes expressive elements such as body position, timing, use of space, energy, pauses and repetition.”(Gover 2023)
Furthermore, the initial dismissal viewed the choreography of the emote as “short” and a “small component” of the original work, but the appeal found that this was not a reason to dismiss the case: “As the Court observed, “short does not always equate to simple,”” (Gover 2023).
There are two interesting claims here ontologically. First, during the appeal, the way of conceptualising the dance changed, from a series of poses to a movement sequence with ‘expressive elements’ – to arguably constitute a work. Second, the amount of movement does not impact on whether it can be considered a work or not.
Hick explains how “what is protected by copyright is not any physical object, but rather an abstract object that may be embodied in physical objects” (2017: 88). So, copyright law appears to implicitly adopt a type/token approach (see Hick 2017, Wilson 2010, 2022). For example Pakes proposes that copyright “appears compatible with an ontology of choreographic works as structures of action- types indicated by choreographer(s) within a given historico- artistic context” (2020: 181).
Fixation is required in UK and US law which might occur means such as notation or video recording (see Pakes 2020: 179-180, Van Camp 2006: 47, Conroy 2013: 112-119, Whatley et al 2015, Biagioli-Ravetto and Ravetto-Biagioli 2021: 3-7). Some have critiqued the idea of fixation as not aligning with the nature of dances. For example, Biagioli-Ravetto and Ravetto-Biagioli explain: “all possible fixations of dance are inherently external to it” (2022: 5).
The way that the law ascertains the identity of a work via fixation also seems to point to an implicit adoption of the type/token schema (Hick 2017). The work or type is identified a work via the fixation of a specific instance or token of it.
I hope I have shown here is that the law depends upon ontological positions and by better understanding dance ontology we can also understand the possibilities and limitations of copyright for supporting artists to ensure that their dances circulate fairly. The next post will address how ontology overlaps with ownership conventions and norms outside of legal structures.
