Reading Summary - Topic 2 - Dance Works Protection in Chinese Copyright Law

1. Introduction

• The core dispute: how to protect dance works under copyright law in China, given that dance blends theater and dance as an independent art form.

• Yang Liping v. YunHaiyao case sparked intense debate about what elements constitute a dance work and what should be protected.

• Key questions raised:

  • Should protection cover elements beyond dance movements, postures, and dancing expressions?

  • How broad should the scope of protection be, and how easy is it to manage or enforce?

  • If more elements are included (e.g., stage lighting, costumes), the protection threshold rises; if only movements are protected, the scope may be too narrow.

• Conclusion of the introduction: there is a need to balance recognizing the stage and digital aspects of dance with the traditional focus on movement; protection should reflect the integrated nature of contemporary dance (movement + stage elements) while acknowledging the evolving media landscape (e.g., network technology).

2. The confusion of defining dance art

2.1 Various perspectives for defining dance works

• Dance is an independent category and is often intertwined with other artistic components, complicating copyright identification.

• Because dance works were protected later than other works, applying traditional copyright concepts to dance can be challenging.

• The essence of dance is debated due to its fleeting performances, the coupling with music, costumes, and props, and multiple disciplinary dimensions.

• The discussion covers how to identify the core of a dance work and what elements should be protected.

2.1.1 The fleeting nature of dance performances and the protecting way by records

• Dance needs recording/fixation for permanent transmission and repeated enjoyment.

• For copyright protection, a dance work should be a series of movements and stage elements that can be written or fixed in some form.

• Chinese copyright law currently protects the design of dance movements, requiring fixation or stylization.

• Fixation aims to provide a basis for copyright certification in disputes and future protection.

2.1.2 The characteristics of the stage and the perspective of comprehensive protection

• The concept of dance as a comprehensive art is linked to the staged presentation where dance combines movement with stage elements (stage effects, music, lighting, props, costumes, etc.).

• George Norville’s view: dance as a plastic art; a dance drama is a picture on a stage; the stage is the canvas.

• Many scholars describe dance as a comprehensive art that blends temporality and space and often integrates multiple art forms (music, poetry, drama, painting, acrobatics).

• The comprehensive nature suggests that stage elements contributing to the presentation should fall within the scope of protection.

2.1.3 The dancing language and the protecting scope on designing of movements

• A movement-design-first approach focuses on the design of movements rather than the entire stage or fixed records.

• Movement design requires creativity to inject aesthetic emotions into social phenomena, typify images, form artistic concepts, and translate these into dance through professional skills.

• This approach emphasizes both the movements themselves and the accompanying ideas and emotions; it excludes purely technical, skill-based, procedural movements from protection.

• The core content is how to design movements that convey meaning and emotion within a choreographic context.

2.2 Different scopes of copyright protection for dance works

2.2.1 Different views of Chinese courts

• Yang Liping v. YunHaiyao produced divergent outcomes between first instance and appeal:

  • First instance view: originality can be reflected not only in static postures but also in the connection, choreography, and combination of dynamic movements; stage elements like lighting contribute to original expression.

  • Appeal view: makeup, background lighting, music create atmosphere and assist performance but are not part of the original design of movements/gestures; these elements should not be protected as original design.

• The court of first instance expanded the scope by treating stage elements (lighting, background, etc.) as part of the dance work’s originality; the court of second instance restricted protection to original designs such as movements, gestures, and expressions, excluding makeup, lighting, and sound effects.

• Overall, the two main questions guiding protection were:

  • Should the scope of protection include other stage elements beyond movements?

  • Should static, single-person movements constitute the core original expression?

• The first instance favored broader protection (comprehensive view), while the second instance narrowed it to core expressive elements, indicating a tension in defining the boundary of protection.

2.2.2 Legislation of dance work in some countries

• International context shows varied treatments of dance works in law:

  • Berne Convention (Article 2) and US Copyright Act (Article 102) provide general coverage but do not clearly define the precise scope of a dance work.

  • Different national classifications include:

  • Some treat dance works as dramatic works (with juxtaposition to mime or pantomime) akin to the UK and Korea.

  • Some classify dance works as mime works (Germany).

  • Others juxtapose dance with dramatic works (Italy), pantomime works (Japan), or treat pantomime as dance works (France).

• The lack of a clear, uniform definition across countries explains the difficulty in distinctly recognizing and protecting dance works; many jurisdictions rely on theater-like performance context and stage performance as a basis for classification.

3. Challenges of dance art’s development

3.1 The influence of theater on the development of dance art

• Core idea: physical movement is central, but dance often becomes a comprehensive art when combined with other arts and modern stage technology.

• The frame of modern dance (theater) can constrain or redefine how dance is perceived; tensions exist between framing and deframing artistic expression.

• With information technology and the internet, dance can be disseminated beyond traditional theater, leading to new forms of expression outside the stage while preserving artistic power.

• The rapid transmission and broad reach of online platforms create a new dynamic in how dance is experienced and potentially infringed, challenging traditional copyright frameworks.

3.2 The impact of the internet on the protection of dance works

• The internet enables digital filming, modification, and online broadcasting of dances, expanding access beyond theaters.

• Virtualization changes the audience experience, moving from a fixed theater setting to a four-dimensional or multi-dimensional multimedia platform.

• The relationship among creators, performers, and audiences is rewired online; this affects how dance is disseminated and protected.

• Increased copyright infringement on social media: choreographers’ moves can be copied and posted without proper attribution, complicating timely legal remedies.

• Traditional copyright approaches may be insufficient to address online infringement; a rethinking of protections for dance works in digital and networked environments is necessary.

4. Copyright law's response to the protection of dance works

4.1 The significance of copyright law to protect actions

4.1.1 Movements can embody originality

• The essence of copyright protection for dance lies in protecting the external manifestation of a dancer’s inner world, expressed through dance language as the concrete expression of dance works.

• Historically, dance moved from a chaotic, non-independent art to a comprehensive art performed on stage; however, the core protection remains the author’s creation of the dance language.

• The choreographer’s interpretation expressed through body movement is the fundamental unit of protection; dance movements are an expression of inner content translated into physical form.

• Dance movement is the basic unit of expression, serving as the most elemental component of the dance work, though movement alone does not exhaust the expressive potential of a dance language.

4.1.2 Body language has a symbolic function

• Susan Lange’s view: art acts as a pictogram of emotion; the emotional content is represented through formal relationships between form and feeling.

• In dance, expressive movements (and poses) can serve both expressive and symbolic purposes; a pose can stand for a concept or emotion and thus function as a language within the work.

• A protected dance work should reflect a complex relationship between emotional and physical symbols; both mood (emotional content) and outward form (physical signs) contribute to protection under copyright.

• Symbols in dance (postures, gestures, props) are often conventional but can be observed, imitated, and produced; under certain circumstances, their symbolic function warrants copyright protection.

4.1.3 The value of copyright protection for poses

• The size of the creative space in a single static movement affects whether a choreographer has room for originality; under the merger doctrine, if elements do not provide space for others’ independent expression, original protection may be limited.

• A single decorative movement can be integrated with other stage elements (rhythm, strength, interaction with props) to create a larger, original expression of a dance work.

• For identification, both movement and stillness, as well as the presence or absence of props, contribute to the expression of the work.

• Props (e.g., balloons, handkerchiefs) can function as expressive extensions of the dance’s ideology and feelings; their use can be essential to conveying the intended meaning (e.g., balloons for hope, letters for family).

• In Yang Liping v. YunHaiyao, the “single dance movement” (posture) alone may be insufficient; the expression of the dance work often requires integration with stage elements (lighting, moon shadows) to realize the intended theme (e.g., Moonlight Silhouette).

4.2 Movement is the most central expression of dance works

4.2.1 The dancer’s body constitutes the carrier of dancing language

• Different arts use different material carriers; for dance, the body of the dancer is the primary carrier, with movement as the primary vehicle of expression.

• The dancer’s performance on stage materializes the choreographer’s concept; the dancer’s body is the main vehicle of the expression, not just the choreographer or rehearsal staff.

• The dancer’s individual interpretation contributes to the work’s dissemination and audience engagement; protection aims to safeguard this broader dissemination potential.

4.2.2 Other expressions may exist in the dance work

• Some dances rely on props or stage design to highlight the body’s form; for example, Moonlight Silhouette uses a circular backdrop to emphasize the body’s line.

• If certain expressions require specific costumes, makeup, lighting, or music, these elements may need to be considered as part of the dance work’s expression; conversely, if these elements are not essential, the core protection may remain centered on the dance movements.

• The boundary between dance and theater protection depends on the specific expression needs of the work; dynamic interpretation of the provisions for movements, postures, expressions, and the interpretive scope of “etc.” should be applied contextually.

5. Conclusion

• A superficial reading of dance works within copyright law raises more questions about protection; reconciling legal interpretation with artistic practice is essential for a healthy dialogue between law and art.

• The traditional jurisprudence often fails to align with the realities of dance, potentially discouraging creators from pursuing protection and hindering the industry’s development.

• A reconstruction of the connotation of dance works under copyright law is needed to encourage industrialization and creativity in dance.

• Movement design theory provides a robust framework for defining the connotation of dance works; Susan Lange’s art symbolism clarifies the essence of dance works.

• The language of dance constitutes the work, with the body as its carrier; protection should be extended to adapt to the dance material in each case, recognizing entertaining, artistic, and fashionable dances as real counterparts of dance works under copyright law.

• Directly expanding protection to treat dance as dramatic works risks overlap and overly restricts recognition; a nuanced approach is needed to avoid such problems and preserve the essence of dance.

• The ultimate goal is to align dance art with copyright jurisprudence to achieve effective, long-term protection of dance works.