DANCING with the DEVIL(S): the Dance Industry's Endless Struggle
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DANCING WITH THE DEVIL(S): The Dance Industry’s Endless Struggle to Maintain Relevance and How Vigilant Copyright-Protection Measures for Musical Works Are Further Damaging Its Odds By Gabrielle Peters, George Mason University School of Law INTRODUCTION Friedrich Nietzsche is often quoted as having said, “. those who were seen dancing were thought to be insane by those who could not hear the music.”1 Undoubtedly, the statement was meant to be interpreted philosophically; however, applying a literal construction, the quotation quite effectively captures the issue at the heart of this Comment. On December 30, 2013, The Dance Sessions posted a video to their YouTube channel featuring two dancers performing Sonya Tayeh’s choreography,2 backed by Sam Smith’s stripped-down version of “Latch.”3 The footage was posted to display Tayeh’s choreographic skills and her assistants’ technical prowess, as well as inspire dancers who were unable to be physically present at the event.4 Though the video’s purpose was benign, after pulling in nearly 25,000 views, YouTube eradicated the underlying music. What was once a stunning display of dance technique and musicality is now a silent film—just movement and a text box.5 To use Nietzsche’s terminology, the dancers look moderately “insane” in the absence of music. The totality of the video’s beauty has been effectively diminished in the name of copyright protection. The relationship between dance and music is symbiotic. Dance mostly uses music as a backdrop, but the connection is arguably more critical: “Subtle and elusive aspects of dance-music relationships . works by choreographers known for their highly developed musicality, . is where the relationship really becomes something very special, something beyond—or different from—the dance and the music individually.”6 Recording artists and record labels have recognized dance’s value to the music market. In 2009, Travis Wall made his choreographic debut on the dance-centric reality television show So You Think You Can Dance with a piece set to Jason Mraz’s “If It Kills Me.” Mraz saw and enjoyed the work, and invited the dancers featured to perform it during one of his tour stops. 1 Those Who Dance Are Considered Insane by Those Who Can’t Hear the Music, QUOTE INVESTIGATOR, http://quoteinvestigator.com/2012/06/05/dance-insane (last visited Jun. 30, 2016); There is some speculation as to whether Nietzsche is the actual source of this sentiment but, either way, the responsible party makes a compelling point. 2 THEDANCESESSIONS, Sessions Moment – 29, YOUTUBE (Dec. 30, 2013), https://youtu.be/qeKP1O9ZFAA. The performance occurred in conjunction with a workshop hosted by The Dance Sessions; the dancers were Tayeh’s assistants. It is customary in the context of dance workshops for choreographers to enlist the talents of their assistants to provide others with a demonstration of the movement's ideal execution. 3 A popular track on which he collaborated with electronic music group Disclosure. 4 This practice is extremely commonplace within the dance community. 5 See THEDANCESESSIONS, supra note 2 (stating, “This video previously contained a copyrighted audio track. Due to a claim by the copyright holder, the audio track has been muted”). 6 Charlotte Waelde & Philip Schesinger, Music and Dance: Beyond Copyright Text?, 8 SCRIPTED 257, 264 (2011). 1 More recently, Justin Bieber followed the release of his newest album with a video series entitled PURPOSE: The Movement, meant to reimagine and convey his songs through dance. The series has reached significant popularity, even amongst those not formerly partial to Bieber’s music. Additionally, Carrie Underwood’s music video for her hit, “Something in the Water,” focuses exclusively on contemporary dance.7 Record labels have openly acknowledged their awareness of dance’s power to attract music consumers.8 An article for the New York Times stated, “We know we can do more things with records that already have dances attached to them, including doing viral videos, whether it be official music videos or even more lower production videos . .”9 Of course, there are “viable” legal justifications for muting background audio on videos such as the one posted by The Dance Sessions; that is, they technically violate the copyright owner’s statutorily-mandated exclusive rights.10 Pursuant to the Digital Millennium Copyright Act (DMCA), copyright owners may file “takedown notices” when their rights have been compromised and YouTube, as a host of user-generated content, is required to comply with and/or enforce those notices so as to avoid liability for alleged infringement.11 YouTube specifically uses an automated system called ContentID to police and manage uses and/or infringement of copyright-protected works on their site.12 Though efficient, ContentID is flawed—it is “easily susceptible to false positives”13 and regularly flags works that would fall into the “fair use” category. This restraint of expression could wreak cultural havoc if it, as well as the pertinent laws allowing such extreme measures, do not evolve to match the societal and technological climates. This Comment examines the tension between the DMCA and widely-accepted practices within the dance industry, and proposes practical alterations to relevant law and/or industry custom so as to allow dance to thrive in the digital age. Part I will demonstrate the dance industry’s objective need to continue utilizing technological innovations to maintain significance in our newfound digital culture, and subjectively illustrate how the community has responded to this necessity. Part II will expound upon current copyright law and enforcement mechanisms, highlighting inherent defects that could restrict dance’s ability to flourish going forward. Part III will propose potential solutions that might mitigate the possibility of dance becoming an obsolete form of entertainment in the future. PART I: THE DANCE INDUSTRY – COGNIZANT OF ITS CULTURAL ROLE AND STRIVING TO ADAPT Experts and enthusiasts alike will agree that the relatively-recent resurgence of dance’s popularity within American culture is largely due to the television program, So You Think You Can Dance. The show is a springboard for choreographers and dancers—most notably, Travis Wall’s career was jumpstarted by his choreographic work on the show and many other contestants have gone on to be featured in dance-related films. Elena Benthaus14 explains on-screen dance’s renewed popularity: 7 Choreographed by Travis Wall and featuring members of his contemporary dance company, Shaping Sound. 8 Julie Bloom, You at Home, Put a Viral Spin on It, NY TIMES (April 30, 2010), http://www.nytimes.com/2010/05/02/arts/dance/02videos.html?_r=0. 9 Id. (quoting Jeff Dodes, executive vice president for marketing and digital media at the Jive Label Group). 10 17 U.S.C. § 106 (2012). 11 U.S. COPYRIGHT OFFICE, THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998: U.S. COPYRIGHT OFFICE SUMMARY 8 (1998), http://www.copyright.gov/legislation/dmca.pdf. 12 Amul Kalia, Congrats on the 10-Year Anniversary YouTube, Now Please Fix Content ID, ELEC. FRONTIER FOUND. (May 21, 2015), https://www.eff.org/deeplinks/2015/05/congrats-10-year-anniversary-youtube-now-please-fix-content-id. 13 Benjamin Boroughf, The Next Great YouTube: Improving ContentID to Foster Creativity, Cooperation, and Fair Compensation, 25 ALB. L.J. SCI. & TECH. 95 (2015). 14 Sociologist and dance commentator. 2 “The past two years have seen the increasing visibility of dance in music videos, not just as background noise but with dance content assuming center stage (think . Sia’s recent videos), and dancers posting and promoting their own work on YouTube . .”15 These performances “aim at transmitting the kinetic energy of performance for the spectator-at-home via the screen . .”16 In an age of personalized and convenient entertainment, on-screen dance facilitates a full spectatorship experience without requiring attendance at an in-person performance, which can be costly and less accessible. Dance is undoubtedly a time-honored cultural entity, with a longstanding on-screen presence,17 but pervasive focus on virtual socialization, coupled with sites like YouTube, has made dance-on- video, particularly via the Internet, something of a necessity. It has been suggested that any artist who does not plan and implement a digital presence or footprint can only expect a diminished audience in the future.18 In February of 2011, the NEA released a research report analyzing public participation in the arts during 2008.19 A pertinent finding was that “the vast majority of participation in theater and visual arts is through attendance, whereas the majority of participation in music and dance occurs via electronic media.”20 Compared to the miniscule eight percent of the U.S. adult population who participate in the arts solely by attending performances, “over half reported viewing or listening to a performing arts event or a visual arts program (via recorded or broadcast media), or accessing arts performances or programming online (via Internet).”21 Social media has played a critical role in this shift towards online-viewing of dance, serving as a marketing tool and defining how we “find, share, and process information.”22 “These technologies (web-based) help users to easily create content on the Internet and share it with others, such as: filming dance and putting it on YouTube . .”23 The concept of “viral videos” has been kind to dancers in this context. In the past few months alone, two dance videos have been featured on Buzzfeed24 and then spread around other social media platforms.25 The articles and accompanying videos circulated to an almost unprecedented extent; even amongst people not typically interested in dance. Professional dance companies also employ YouTube in order to draw the attention of potential live-performance attendees—The Washington Ballet’s “Hardest Dance Moves” video that was disseminated across social media platforms in 2014, for example.26 Videos of this nature are wildly successful in exposing the general public and/or potential employers to dance work.