By Klaus Kieser
Art school students learn it from the outset, namely copying famous role models and styles. Then, soon afterwards, deliberate copying turns into a problem. Using other people’s ideas without an ironic wink of the eye or an obvious conceptual intervention brings you face-to-face with the criminal code, for example in ‘pirate copy’ cases, i.e. the unauthorised imitation of fine, generally prestigious branded goods, the illegal reproduction of storage media (such as CDs or DVDs), or the deceptively realistic copying of famous paintings. Germany’s former Defence Minister Karl-Theodor zu Guttenberg learned the hard way that plagiarism is anything other than a trivial offence after it emerged that he had cited texts by other authors in his doctoral thesis without attributing them, thus giving the impression that he had written them himself. It cost him his job, and the case has since been in the public prosecutor’s hands. It isn’t just in the academic world but also in the field of literature that the copying of others is generally easy to detect. It can be seen in the case of Helene Hegemann and her novel Axolotl Roadkill, for example. It’s always a question of whether text passages are identical or not, and it’s relatively easy to spot. The grey area is narrow.
It’s a different story in music and dance, however. The material in both genres is comparatively limited, which means that to a certain degree similarities in the creation of a melody, harmony sequence or dance combination may simply occur, regardless of the fact that every composer and choreographer would like to be original. Nevertheless, plagiarism does take place.
Plagiarism is ‘geistiger Diebstahl’ (‘intellectual theft’) but this term isn’t used in federal law. The standard work of reference in the German legal profession, Creifelds Rechtswörterbuch (Creifelds’ Legal Dictionary), defines is as follows: “Plagiarism means that another’s work has been used in whole or in part in a new work, the author of which refers to himself as the author of the new work in its entirety. It is unauthorised use of a non-free work.”
The last sentence refers to copyright, the aim of which is to protect a work of art or an academic work against unauthorised (commercial) use, in Germany up to 70 years after the originator’s death. The idea that a work of art is the result of an intellectual performance that is worthy of protection did not assert itself until the second half of the 19th century, manifesting itself at the national level in the Gesetz, betreffend das Urheberrecht an Schriftwerken, Abbildungen, musikalischen Kompositionen und dramatischen Werken (Law Concerning Copyright on Written Works, Illustrations, Musical Compositions and Dramatic Works) of 11 June 1870. The Übereinkunft, betreffend die Bildung eines internationalen Verbandes zum Schutze von Werken der Literatur und Kunst (Agreement Concerning the Formation of an International Association for the Protection of Works of Literature and Art), which was signed in Bern in 1886, regulated copyright for the first time transnationally. In Germany, the Gesetz über Urheberrecht und verwandte Schutzrechte (Act on Copyright and Related Rights) came into force on 1 January 1966. Works that can be protected include “works of pantomime, including dance works”, as it’s unfortunately worded in Article 2, Paragraph 1, Number 3. Consequently, all rights set out in the Act apply also and equally to choreographers.
That’s the theory anyway. In practice, you could be forgiven for thinking that dance is a world of saints in which nothing gets stolen or copied, as, in contrast to, say, popular music there are practically no court proceedings against plagiarism in dance, although dance is indeed plagiarised. Avid dance-watchers will be able to tell you a thing or two about it. How often have you thought to yourself, “Hold on, that looks like …”? Choreographers enjoy talking to each other behind closed doors about a colleague who has stolen either from them or someone else. But choreographers almost never take any legal steps. Why not?
Maybe it’s part of the way this art from sees itself that people are generous when it comes to copying and imitating. That would be in line with tradition, as people have been cribbing, imitating and even parodying works as they saw fit ever since ballets that had been successful in one place were produced at another theatre, and ever since choreographers travelled around like movement reps – namely since the middle of the 18th century. There were no legal problems, as copyright still didn’t exist, so artistically it was also OK. Added to this is the fact that the idea of seeing a choreography as an independent work of art only emerged in the 20th century. Go back 100 years and it was the librettist who was considered the originator of a ballet. At some point later, this attribute was given to the music composer. In fact it wasn't until two or three decades ago that it generally became accepted that the choreographer should be seen as the actual originator of a work, even if many provincial theatres or musicologists have yet to grasp this development.
Has keeping quite about imitation become embedded in choreographers’ collective unconscious? It isn’t difficult for choreographers to assert their rights in the event of plagiarism, as German copyright law states that a dance work does not have to be set in stone, i.e. in written form or on an image or sound medium, for it to be protectable. The fact alone that a choreography exists – even if only in rehearsals or as an improvisation – makes it a work of art, regardless of artistic quality, and thereby potentially protectable. It goes without saying, however, that an informative document – for example a notation or film – is an advantage when presenting a case in a legal dispute.
Kurt Jooss demonstrated the right way to go about defending oneself successfully against plagiarism. After the musical film Sensation in San Remo starring Marika Rökk was released in cinemas on 6 September 1951, the choreographer filed for a temporary injunction against the showing of the film in its original version in the Lichtburg cinema in Essen, and demanded that the scene entitled Die Sittlichkeitskommission (The Morality Commission) be removed, as the movements of people dressed in black and wearing old men’s masks around a table was astonishingly similar to first and final image of his ballet Der grüne Tisch (The Green Table). Essen District Court didn’t take long over its decision. As reported in the Spiegel newspaper on 26 September 1951, the production company was ordered to edit out the relevant scene from the film. Despite sworn statements by Rökk, director Georg Jacoby and producer Rolf Meyer saying that they knew absolutely nothing about Der grüne Tisch, the court ruled that there is “a high probability that the table scene has in part been borrowed from the dance drama by Kurt Jooss”.
The proceedings were instructive. The court witnessed a performance of Der grüne Tisch by the Folkwang Ballet company and then watched the film scene in question. The mere visual appearance of the film scene was enough for the court to reach a verdict. It could not be proved whether the director, the leading actress or Sabine Ress, the choreographer of the dance number in the film, had actually ever seen Der grüne Tisch (which would have been almost impossible to do), but the court took evidence into account suggesting that Rökk and Ress did have at least indirect knowledge of Der grüne Tisch at the time the film was recorded (Ress had competed in the same choreography competition in Paris in 1932 that Jooss won with Der grüne Tisch while in 1950 Rökk had spent a long time touring with Werner Stammer who had been a member of Jooss’s company and had danced in Der grüne Tisch).
Jooss didn’t hold back from lodging a complaint against plagiarism. Did it have anything to do with the fact that it involved a different, financially stronger medium, so compensation was possible? Even choreographers weaken and flout solidarity when attracted by a nice chunk of money, as Yury Grigorovich proved in 1999. On the eve of a guest performance by the Bolshoi Ballet in London, Grigorovich went public with a demand for around GBP 100,000 in royalties, arguing that three of the ballets to be performed – Spartakus, La bayadère and Raymonda – were his own productions and that he had not consented to their being performed. The London performances went ahead as planned, so it can only be assumed that a quick and mutually satisfactory agreement was made between the Bolshoi Ballet and its former director and choreographer.
Plagiarism of dance can obviously only thrive where choreographies are created in the ballet and modern dance tradition, where choreographers are naturally anxious to discover new and ever unique movement combinations and forms. Sufficient originality and idiosyncrasy takes their works over the hurdle that is known in legal terminology as the ‘threshold of originality’, i.e. when a choreographic idea is unique in a way that goes beyond what is practised in training, for example, or beyond what is used for other training purposes. In other words, individual ballet poses or steps such as arabesque, pas de bourrée, pas de chat, etc. are not protectable in and of themselves, but they may be protectable if they are used in combination and the result is sufficiently characteristic. The length of a protectable choreographic unit isn’t determined, but the length isn’t important anyway, rather the specific, unmistakable creation. Dance is similar to music in this respect. A musical scale is not protectable, for example, but an original musical creation, such as a melody, is.
In dance, it isn’t possible to protect a theme, story or particular format. The protectable choreographic must be associated with movement, and this covers a wide range, from a combination to the structural development of an entire piece. Style is no more protectable. To choreograph ‘in the style of …’ may not necessarily win anyone any great recognition, but it doesn’t breach copyright on that basis.
Choreographers presumably know too little about the legal framework in which they work therefore have no interest in plagiarism. One of the great choreographers of our time, Jirí Kylián, admits that “this problem has never really interested me” and that “dealing with these kinds of things is really only a waste of time and energy”. We can assume that William Forsythe, John Neumeier and others think the same, including John Cranko’s heir Dieter Gräfe. In at least one case, Gräfe had genuine grounds to lodge a complaint, namely against Günter Pick whose 1999 ballet Werther-Szenen (Scenes from Werther) had a ring of familiarity about it. Gräfe could even have his grounds for complaint from a review in the Süddeutsche Zeitung newspaper where Manuel Brug wrote at the time: “[…] the best passages in the central movement between Werther und Lotte are – and this is embarrassing – stolen from the closing pas-de-deux in John Cranko’s wonderful Onegin.”
Does one choreographer avoid filing a legal complaint against another because it would be mostly against someone whose perception doesn’t exhibit the same artistic format? Is to avoid earning someone else any underserved attention via the inevitable media reports? Do people hold back because they don’t want to look petty and envious? Or is there ‘bite inhibition’ in play because everybody knows each other?
A breach of copyright can be dealt with quickly, as Jooss proved in 1951, but what does a plaintiff gain beyond confirmation of being in the right? Financial compensation, if any is awarded at all, can only be enforced with considerable expenditure and effort. So why should one choreographer bother taking on another when the former essentially doesn’t see the latter as someone who can provide a satisfactory conclusion? Kylián gave a convincing answer: “If someone has stolen something from my work, I console myself with the old adage that ‘you only steal from the best’.”
Source: tanz / May 2011 (translated from the German)