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.
15 Elena Benthaus, In Step with the Times: So You Think You Can Dance and the Pleasure of Screen Dance, THE CONVERSATION (September 3, 2015, 1:46 AM), http://theconversation.com/in-step-with-the-times-so-you-think-you-can- dance-and-the-pleasure-of-screen-dance-46678. 16 Ken Tabachnick, Dancing with a Digital Presence, DANCE/USA (June 28, 2011), http://www2.danceusa.org/ejournal/post.cfm?entry=dancing-with-a-digital-presence. 17 Early films often featured dancers such as Fred Astaire and Ginger Rogers. 18 Tabachnick, supra note 16. 19 Id. 20 Id. 21 Id. 22 Eleni Zaggelidou et al., The Effect of Marketing on Dance Activity, 13 J. PHYSICAL EDUC. & SPORTS (2013). 23 Id. 24 A “news” site popular amongst millennials. 25 See, e.g., Allison Bagg, You Have to Watch This Couple Dancing On A Subway Platform, BUZZFEED NEWS (June 17, 2015, 5:07 PM), http://www.buzzfeed.com/abagg/dancing-on-the-platform#.nkMD2erVDl; Allison Bagg, This Beautiful Dance Tells A Breakup Story In The Most Emotional Way, BUZZFEED NEWS (September 30, 2015, 2:04 PM) http://www.buzzfeed.com/abagg/this-dance-tells-a-breakup-story-in-the-most-beautiful-way#.vud1YgOB14. 26 The Washington Ballet’s Hardest Dance Moves, YOUTUBE (April 17, 2014), https://youtu.be/n7AaZhEOJSY. The video reached “viral” status, pulling in well over one million views, and brought great exposure to the company.
3 Dancers and choreographers have recognized the need to continue adapting to technological innovations in order to broaden the scope of dance education, so they have begun offering classes via online streaming.27 Individuals can purchase these filmed/streamed classes and gain access to sought- after instruction at a substantially lower cost than would be expended if they opted to participate in a convention or bring the choreographer directly to their home-studio. Perhaps choreographers in these instances acquire licenses for musical works and/or sound recordings used in video sessions28 but certainly there are copyright implications attached to the service. Of course, because these sessions and the service that makes them available is a for-profit venture, they differ from merely posting a video of movement on YouTube for noncommercial purposes, but nonetheless, should use of copyright- protected tracks in this context be prohibited or subject to legal recourse, the dance industry would conceivably suffer; absent music, the development of these services would be futile. The dance industry’s efforts to thrive by adapting to an increased emphasis on digitization would be in vain.
PART II: CONTENTID, AUDIO-MUTING, & THE DMCA – CURRENT COPYRIGHT LAW & ITS MYRIAD PROBLEMS
At the root of the DMCA’s introduction was fear that “absent legislative intervention, copyright law would fail to protect copyrighted works in a manner that would ‘make digital networks safe places to disseminate and exploit’ such works.”29 The DMCA grants exemptions to infringement liability for service providers like YouTube, provided that they meet certain criteria and take specific measures to counter any potential infringement.30 Title II of the DMCA added an amended § 512 to the Copyright Act, creating these new limitations in the event that an online service provider’s purpose and conduct fall into the following categories: (1) transitory communications, (2) system caching, (3) storage of information on systems or networks at the direction of users, and (4) information location tools.31 Beyond being accurately considered a “service provider,” YouTube gains eligibility for the prescribed limitations by meeting two additional conditions: “(1) it must adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers; and (2) it must accommodate and not interfere with ‘standard technical measures.’”32 These prerequisites to insulation from liability for infringement are presumably what spawned the protective mechanisms used by YouTube. Infringement—alleged or actual—that takes place on YouTube is policed by ContentID, which functions by comparing videos uploaded to YouTube with reference files provided to the site by content/copyright holders.33 ContentID “scans over 400 years-worth of video and utilizes more than twenty-five million reference files of more than 5,000 partners . . . .”34 When it identifies user- uploaded videos that consist entirely or partially of copyrighted content, it employs a series of if-then statements to determine whether to implement one of its predefined remedial policies which include
27 About Us, CLI STUDIOS, http://www.clistudios.com/about/ (last visited Jan. 30, 2016). 28 No one at CLI Studios was available to provide comment or other information on the matter. 29 Matthew Schonauer, Let the Babies Dance: Strengthening Fair Use and Stifling Abuse in DMCA Notice and Takedown Procedures, 7 I/S: J.L. & POL’Y FOR INFO. SOC’Y 135 (2011). 30 See U.S. COPYRIGHT OFFICE, supra note 11. 31 Id. YouTube falls into the third category and qualifies as a “service provider” per § 512(k)(1)(B)’s definition of the term as “a provider of online services or network access, or the operator of facilities therefor.” Id. 32 Id. 33 Bouroughf, supra note 13. ContentID exists outside the confines of the DMCA and is defined as an “advanced set of copyright policies and content management tools.” 34 Id. This includes network broadcasters, record labels, and movie studios.
4 tracking, monetizing, or blocking.35 Although ContentID is championed by many as being the ultimate solution to online infringement, its arms-length and dehumanized methodology tends to squander uses that would be “fair” pursuant to § 107 of the Copyright Act, or otherwise tolerable.36 These “false positive” matches harm the information-sharing mechanisms of both the Internet generally and YouTube specifically by eliminating certain uses of copyrighted content that could have actually been permitted or tolerated had the system provided copyright holders with notice and/or occasion to allow them.37 This practice of muting audio on videos containing copyright-protected background music is not exclusive to the types of dance videos described previously. In 2013, librarians from Lansdowne, DE experienced this phenomenon firsthand when the audio on their book-centric parody of Michael Jackson’s “Beat It” was removed.38 Afterwards, a spokesperson from Sony/ATV Music explained that YouTube employs self-policing mechanisms and, as such, the site was responsible for the treatment of the video.39 The librarian who created the video lamented that there was no recourse for its being disabled; YouTube’s only recommendation for remedy was voluntary elimination of the copyrighted audio track.40 Additionally, in 2015, a couple’s wedding footage was muted due to a brief segment that utilized Taylor Swift’s hit tune, “Shake It Off.”41 Although the use of Swift’s track was brief at most, YouTube removed the entire audio track—depriving this couple of every other moment from their ceremony and reception, including vows and speeches.42 After taking to Twitter to plead their case with Swift, the audio was finally restored.43 Probably the most prominent instance of YouTube taking action against content that did not inherently constitute infringement, or warrant blocking/disabling, is the recent case of Lenz v. Universal Music Corp.44 YouTube disabled a video of Lenz’s child dancing, on the grounds that Prince’s “Let’s Get Crazy” could be heard faintly in the background of the footage.45 The Ninth Circuit Court of Appeals held that the DMCA requires a copyright holder to consider whether a use of their protected work is “fair” prior to issuing a takedown notice for that allegedly-infringing video.46 When determining if a use can be rightfully considered “fair,” four factors are to be considered: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.47 Case law and statutory provisions impose an additional caveat—uses must fall into one of these categories: “criticism,
35 Id. 36 Id.; see also 17 U.S.C. §107 (2012). 37 Boroughf, supra note 13. 38 Patty Mengers, ‘Read It’ gets the Silent Treatment on YouTube, DEL. COUNTY DAILY TIMES (September 25, 2013), http://www.delcotimes.com/article/DC/20130925/NEWS/130929703. 39 Id. 40 Id. 41 Katie Corvino, Taylor Swift May Have Had a Wedding Video Banned for the Dumbest Reason, ELITE DAILY (October 13, 2015), http://elitedaily.com/entertainment/taylor-swift-couples-wedding-video/1245040/. 42 Id. 43 Id. Swift’s decision to allow this use sets a positive precedent regarding “tolerable” uses, which will be discussed further in Part III. 44 801 F.3d 1126 (2015). 45 Id. 46 Id. 47 See, e.g., id.
5 comment, news reporting, teaching, scholarship, or research.”48 User-created dance videos, like the footage of Tayeh’s choreography, do not effortlessly come under any of these umbrellas; therein lies a problem.
PART III: PROPOSED SOLUTIONS
Despite the practical justifications for allowing copyright owners to disable “infringing” videos on sites like YouTube, where the dance industry is concerned, implementing this piracy-combatting tactic is the antithesis of artists supporting other artists. Additionally, it manifests as contrary to the promotion of creativity identified by the U.S. Constitution as the primary goal of copyright protection.49 That said, either the law itself, or industry custom regarding toleration of uses like dance videos, must change. If not, creativity within the dance community will be inhibited, due to fear of recourse from the copyright owner or inability to expend financial resources for monetized licensing. It is critical to highlight “the importance of understanding the anterior conditions of creative work that are not the usual purview of policy analysis or legal judgment”50 in order to reach a more cohesive body of policies and practices moving forward into what will surely be a technology-laden future.
A. Changes to Copyright Law that Would Afford Dance Videos Fair Use Protection
One framework often employed by courts in making a fair use determination asks whether a use is “transformative.”51 Under this analysis, a use may be deemed “fair” if the material has been used to create something new rather than simply copied verbatim in the subsequent work. Dance videos, while typically backed by music that is identical to a copyright-protected track, certainly add more- than-substantial new and original expression. Additionally, the commerciality of a subsequent work is analyzed with the fourth fair use factor. In the case of choreographic footage posted to YouTube, these works are usually noncommercial. This independence from formal market incentives “signal[s] the presence of expression tied to a creator's personhood,” and deserves to be given greater weight.52 The problem that persists, despite fair use factors that are presumably favorable to user-created dance videos, is that these videos cannot be construed in such a way that would afford them protection under one of the currently-enumerated fair use categories. It follows, then, that in order for dancers and choreographers to continue to utilize video-hosting sites like YouTube as a tool for dissemination, a new category of uses is necessary. In order to deter attempts at skirting liability for infringement by individuals whose videos serve different purposes than those created/posted by dance professionals, the category would need to be carefully-articulated and narrowly-tailored.53 Of course,54 an argument could be made that allowing these works to exist on YouTube and gain popularity would be infringing upon the original recording artist’s exclusive right to create
48 See id. The first factor includes a question as to whether the use is of a commercial nature or is for nonprofit educational purposes. 49 U.S. Const., Art. I, § 8. 50 Waelde & Schlesinger, supra note 6. 51 Though often used to assess right of publicity claims, this line of reasoning falls squarely into the copyright realm under the fair use doctrine’s “purpose and character of the use” analysis. 52 Rebecca Tushnet, User-Generated Discontent: Transformation in Practice, 31 COLUM. J.L. & ARTS 497 (2008). 53 It seems that something very direct and straightforward would be best. For example, “filmed choreographic works using the copyrighted musical work and/or sound recording as a mechanism for transformative creative expression.” 54 As is evidenced by Justin Bieber’s dance video series and the label executive’s acknowledgement of movement’s power relative to music, both referenced in the Introduction section.
6 derivative works.55 However, due to the highly-personal and individually-unique nature of dance and movement,56 variety is imminent and possibilities are endless; one choreographer’s expression of their response to a particular song would not encroach upon the potential for a video commissioned by the original recording artist to gain popularity and value. Multiple dance videos, despite stemming from the same musical work, can easily live on the Internet in harmony without detracting from others’ worth.
B. Ideas for Inter-Industry Acceptance and Permitting “Tolerable” Transformative Uses
Passing new legislation is a drawn-out process and would likely be met with opposition; initially, altering ContentID’s implementation to test a new fair use category might be more palatable. This is not a new concept, though the dance-specific concerns are; a “re-humanizing” of copyright protection relative to YouTube has been recommended.57 ContentID and its remedial practices could be reframed to encourage tolerance, communication, and, in turn, creativity.58 Of particular interest is the suggestion that copyright-holders be allowed to pre-approve certain uses of their works. Certainly, this could remedy the problem of disabled dance videos, which threatens to quash artistic expression; rights-holders need only pre-approve videos that utilize their recording or musical work for movement- based expression. This would also combat the efficiency argument inherent in any debate surrounding manual assessment in databases as vast as YouTube. Additionally, rights-holders could be encouraged to exercise “limited forbearance” regarding their copyright interests in order to avoid negative impact on creativity and dissemination of the resulting expression.59 While that idea is reminiscent of common decency, as it currently stands, copyright owners’ tolerance is at the mercy of an automated system, which does not afford much opportunity for conference with end-users.60 The over-arching thrust is that, in order for all artists and/or contributors to benefit and thrive, the trend must veer away from stringent automated methodology and towards a more person-to-person approach so that those involved are able work in concert towards a resolution that is amenable to all parties’ end-goals.61
CONCLUSION
At the core of the rationale surrounding this proposal for lenient treatment relative to using copyrighted musical works as springboards for expression through movement, is the notion that dance, as form of creative expression, is often a preference; it is something that individuals will do to whatever degree possible, irrespective of external incentives. Those passionate about dance accept the improbability that their love will result in substantial—or even sufficient—financial gain, and yet, they persist. It might be foolish but it is also honorable, and arguably what the Founders envisioned when they granted Congress the power to protect creative works. Continued relentless enforcement of ContentID’s remedial policies for user-posted dance videos, or declining to expand the fair use doctrine to also include dance, would be imposing undue hardship on a community of artists whose strife for viable careers by way of their great passion is already an arduous, uphill battle.
55 Clearly, there is an adjacent market for them. 56 From a stylistic perspective regarding choreography and also differences in technical execution amongst dancers. 57 Boroughf, supra note 13. 58 Id. 59 Id. 60 Id. 61 See id.
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