Cracking Nuts - Copyright in Choreography

This short article gives me an excuse to indulge one of my passions in life: the Ballet.

Northern Ballet are performing "The Nutcracker" at the Opera House until Saturday. I caught the company in Bradford earlier this month and it was a delight. Not to be missed even if you are joining me at the Daresbury Business Breakfast at 08:30 tomorrow. If you miss them in Manchester the company is worth following to its next destination.

My other passion, of course, is intellectual property and the tie that brings them together is the decision of the Court of Appeal in Massine v De Basil [1936 - 1945] MCC 233. Sadly the decision is not yet on line but my old friend, client and solicitor, David Swarbrick of Brighouse, has written a note on the case that is not half bad.

Essentially the choreographer, Leonide Massine - who must have been very dishy in his day judging by this drawing of the great Russian artist Leon Bakst - complained of the inclusion by the impresario Colonel Wassilly de Basil of one of his works in the Ballet Russe de Monte Carlo's repertoire without his consent.

The case is remembered primarily as authority for the proposition that a party who commissions a copyright work can acquire equitable title to the copyright even if the legal title remains with the author. The point has come up in two of my cases, IBCOS Computers Ltd. v Barclays Mercantile Highland Finance Ltd, and Others [1994] FSR 265 and Lakeview Computers PLc. v Steadman [1999] All ER (D) 1327. But the most remarkable aspect of the case is that a ballet was protectable at all under the Copyright Act 1911.

S.1 (1) of the Act provided that copyright should subsist in every original dramatic work that met the subsequent conditions. The definition of a "dramatic work" in s.35 (1) included a "choreographic work" provided that it was "fixed in writing or otherwise". Nowadays dance is recorded in the Benesh system of notation but that was developed several years after the appeal. The Court of Appeal seems to have regarded the ballet as a composition of costume, music, scenery and story as well as dance of which the choreography was only part:
"The choreography was but one part of a composite whole. The defendant had paid the money under the agreement for the supplying to his ballet of a part which was necessary for its completeness, and unless he was entitled to the copyright in that part of the ballet he would not be getting that benefit from the contract which must have been the intention of the parties."

Of course, brilliant though the choreography of an Ashton, Macmillan or indeed a Nixon may be, it is its interpretation by the principals that delights the public. The expressiveness of Sibley, the athleticism of Dowell, the grace of Seymour, the humour of Sleep, the power of Nureyev and the genius of Fonteyn. Since 1989 dancers have enjoyed economic and more recently moral rights in their performances but at the time of Massine the notion of protecting perfromers' rights was very new. The Dramatic and Musical Performers' Protection Act 1928 provided criminal sanctions for unauthorized filming or sound recording but rights of action came along very much later.