By Merlyne Jean-Louis

On October 6, 2011, the video for "Countdown," an upbeat single from the fourth studio album of Beyoncé Knowles (known mononymously as Beyoncé), premiered on MTV. The scenes in the video contained several pop culture references, including Funny Face and West Side Story, and displayed Beyoncé pregnant with her first child (See http://www.youtube.com/watch?v=2XY3AvVgDns). The video immediately sparked controversy because it featured several dance sequences that strikingly resembled choreography from "Rosas danst Santas" and "Achterland," two choreographic works of Belgian contemporary choreographer Anna Teresa De Keersmaeker. (See http://www.youtube.com/watch?v=3HaWxhbhH4c) (video comparing the dance sequences).) Beyoncé stated that she was inspired by the works and thus they were "used to bring the feel and look of ['Countdown'] to life." However, De Keersmaeker commented although she was neither angered nor honored by Beyoncé and her team's appropriation, De Keersmaeker felt they should have been aware of the "protocols and consequences to such actions." (See http://pitchfork.com/news/44269-Beyoncé-accused-of-ripping-off-belgian-choreographer-for-countdown-video/.) To which protocols and consequences did De Keersmaeker refer?

Protection of Moral Rights

If De Keersmaeker desired to simply be asked permission for use of her pieces, then she was probably concerned about her moral rights. Article 6bis of the Berne Convention, a long standing international treaty governing copyright to which the United States is party, provides that any author of a work possesses two moral rights: the right of attribution ("the right to claim authorship of the work") and the right of integrity ("the right . . . to object to any distortion, mutilation, or other modification of [the] work that would harm the author's honor or reputation.") (Berne Convention for the Protection of Literary and Artistic Works, Art. 6bis, Sept. 9, 1886, as revised at Paris, July 24, 1971.) These rights mirror the customary practices of the dance world, where parties ask permission to use the work of a choreographer, who in turn often demands formal artistic credit and the right to have a final say on the presentation of the work. Since the movement in the "Countdown" video could arguably be a distortion of De Keersmaeker's work, De Keersmaeker probably has a valid moral rights claim. However, treaties are non self executing in the United States, which means that the treaty provisions require the implementation of legislation to be valid. The only American federal act promulgated pursuant to Article 6bis is the Visual Artists Rights Act (VARA), which only protects the moral rights of creators of visual art works. (See 17 U.S.C. § 106A.) However, because of supplemental jurisdiction, if De Keersmaeker brought another type of federal claim in a federal court located in a state that had statutes that granted standing to foreigners to enforce their moral rights, then De Keersmaeker could possibly sue under state law for moral right protection. (See 28 U.S.C. 1367.) Thus, if interested, De Keersmaeker may be able to successfully bring a federal moral rights claim against Beyoncé or her team under American law.

Infringement of Copyright

If De Keersmaeker was concerned about the economic value of her works, then she was probably concerned about copyright protection. As her home country of Belgium is a party to several copyright treaties to which the United States is also a party, her work could theoretically be protected in the United States. (See Points of Attachment, International Copyright and Law and Practice, Paul E. Geller and Melville B. Nimmer, 2011, Matthew Bender & Company, Section 6[1][a]; 17 U.S.C. §104 (discussing copyright protection of works of authors of national origin).) Since De Keersmaeker is a foreigner and the alleged infringers would presumably be American, if she claimed a relief of at least $75,000 in damages, a federal court would have subject matter jurisdiction to hear her case if she initiated a copyright infringement action. (See 28 U.S.C. §1332(a)(2) (granting federal jurisdiction over cases between a U.S. citizen and a non-U.S. citizen).)

De Keersmaeker could set forth several claims of infringement of the copyright of her works. The first claim would be based on the holding in Horgan v. Macmillan, Inc., and would be related to De Keersmaeker's exclusive reproduction rights. In this case, the Second Circuit left open the possibility for a book containing still photographs of the production of legendary choreographer George Balanchine's Nutcracker Ballet to be an infringing "copy of Balanchine's copyrighted work because it portray[ed] the essence of the Balanchine Nutcracker." (Horgan v. Macmillan, Inc., 789 F.2d 157, 161 (2d Cir. 1986).) (See also 17 U.S.C. § 106 (1) ("[T]he owner of copyright . . . has the exclusive right[] . . . to reproduce the copyrighted work in copies.").) The court held that the lower court, in determining whether the right to reproduce has been infringed, had to determine whether the alleged infringing photos were substantially similar to the original choreography (not whether the original choreography could be recreated from the allegedly infringing copy, as the lower court had done before the appeal). (See Horgan, 789 F.2d at 162.) Since the parties settled however, the lower court never applied this test. Nonetheless, Horgan's odd holding (which, to the chagrin of the dance world, inferred that something besides actual movement could theoretically infringe the copyright of a choreographic work) is still law. Thus, if the actual physical film of "Countdown" was considered to embody the copy of De Keersmaeker's works, De Keersmaeker could argue that the creation of the film infringed upon her right to reproduce her works.

De Keersmaeker's second claim could set forth two arguments relating to her exclusive right of public performance. (See 17 U.S.C. §101 (defining "to perform...a work 'publicly'" as "to perform. . . at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family. . ."); §106(4) (enumerating exclusive public performance rights related to choreographic works).) The first argument is that the dancers (including Beyoncé) in the video infringed De Keersmaeker's right to publicly perform her works. For example, in one approximate 20 second sequence, Beyoncé and other background dancers perform the exact movement from a portion of "Rosas danst Santas." In another sequence, Beyoncé and the dancers perform only one movement (the shaking of hips and legs) from "Achterland." Thus, the main question that should be asked is how many dance moves or how much dance movement must be performed to constitute infringement of the right to publicly perform a work.

The second argument related to public performance is that broadcasters of the "Countdown" video, including MTV and Google (owner of YouTube), transmitted a public performance of De Keersmaeker's works. (See 17 U.S.C. §101 (defining "to perform . . . a work 'publicly'" as "to transmit . . . a performance . . . to the public, by means of any device or process . . .").) This argument could also simultaneously be set forth as a separate third claim of infringement of De Keersmaeker's exclusive right to display her works. (See 17 U.S.C. § 101 (defining "to display a work 'publicly' as "to display [work] at a place open to the public" or "to transmit . . . a . . . display of [a] work . . . to the public . . ."); §106(5) (enumerating exclusive display rights related to choreographic works).)

As portions of De Keersmaeker's works were performed in the video, De Keersmaeker's could set forth a further claim of infringement based on her right to create derivative works. (See 17 U.S.C §101 (defining "derivative work" as "a work based upon one or more preexisting works . . ."); 17 U.S.C. 106(2) (enumerating the derivative works right for all authors).)

Potential Defenses

There are several defenses to De Keersmaeker's claims. First, the alleged infringer (whether it be Beyoncé, a dancer, or a broadcaster) could argue that De Keersmaeker's works do not meet the United States originality requirement. (See 17 U.S.C. 102 ("Copyright protection subsists . . . in original works of authorship . . . ); Feist Publ'n v. Rural Tel. Servs., 499 U.S. 340, 345 (stating that "original" in the Copyright Act means "that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.").) The sitting court may strike down this defense because De Keersmaeker's works clearly possessed "a modicum of creativity." (Feist, 499 U.S. at 346.) However, choreographers must use dancers to create their works. Does that satisfy the "independent creation" portion of the Feist test? Second, the alleged infringers could attack each of the De Keersmaeker's claims of infringement by stating that the defendants did not engage in the activity for which they are accused. For example, with regards to the public performance claim against Google, Google could argue that it did not display or transmit the works because on the Internet, the only place to see YouTube videos, a viewer would have to take proactive steps to download and view the "Countdown" video. Thus, the viewer would actually be considered to be the infringer. In any event, the DMCA would likely preclude Google's liability, as it is an Internet Service Provider with a Registered Agent, and therefore qualifies for the Safe Harbor provisions. However, MTV would not be able to make this argument if it transmitted the "Countdown" video via television, because videos are transmitted without the requirement of viewers' involvement. Third, the infringers could argue that De Keersmaeker does not have standing to bring the case because the works are not registered under the Copyright Act. (See 17 U.S.C. §411 ("[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim . . .") (emphasis added).) However, as emphasized in the previous citation, this requirement only applies to works of American authors. Furthermore, presuming that De Keersmaeker is the legal owner of the copyright of her works under American law, she has the right to commence an action of her exclusive rights. (See 17 U.S.C. §501(b).)

"If You Sue Me...You're Out of Your Mind"

While the pulse of the dance world is the dancer, the heartbeat that sustains its life is the choreographer. Although there is current explicit copyright protection of choreographic works in America, it is believed that most choreographers do not utilize it. However, it should be noted that the Beyonce's song "Countdown" contains a sample of a countdown from the song "Uhhh Huh" by 90's boy group Boyz-2-Men. (http://www.youtube.com/watch?v=ci8hWx4CR-k). This approximate 10 second sample was sufficient to give the original members of the group songwriting credit, and thus, copyright protection. As a former semi-professional dancer and diehard Beyoncé fan, I find it disappointing that Beyoncé and her team did not follow dance cultural norms and simply ask De Keersmaeker for permission to use her works. However, if credit and recognition is all that De Keersmaeker sought, the use of her works in "Countdown" ironically brought her exactly that - everyone will now know De Keersmaeker's works because the internationally-recognized Beyoncé exposed them to the entire world. If that is the case, it would not make sense for De Keersmaeker to initiate any infringement claim, although the same cannot be said for a moral rights action.

Note: De Keersmaeker could possibly set forth her claims under Belgian law. "If you sue me...you're out of your mind" is a reference to the lyrics of "Countdown."

Merlyne Jean-Louis is a third-year law student at Duke University School of Law. Merlyne trained briefly in ballet, contemporary, and tap dance and specializes in hip-hop and and African dance. If you have any questions or thoughts, please e-mail Merlyne at mjeanlouis32@gmail.com.

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