Copyright and Fair Use




Overview

"Copyright" was a principle conceived in theory to encourage creativity and new work and to protect unauthorized copying or substantial appropriation without crediting the original creator. In practice, copyrights have not always served well the public's need to have access to their cultural heritage. In particular, the complexity of copyrights associated with the creation of dance works and the recordings of them has seriously impacted the availability of dance records for teaching and research. With the changes of practices in information delivery, including the expectation that information should be found easily online or in digital formats, archives struggled to serve their missions to provide their materials to the public against confusion over how copyright law might affect their practices.


Fair Use Project and Best Practices Statement

To address this problem, the Dance Heritage Coalition undertook a two-year investigation into whether the Fair Use Doctrine of the Copyright Act could help free archival materials to increase access to materials needed for teaching, research, and high-quality public programming. The result of five focus groups, a choreographers forum, and other research and interviews resulted in the publication of the DHC's Statement of Best Practices in Fair Use of Dance-related Materials. At the time of its release in May 2009, this booklet was the first fair-use statement to be issued from a library association or in the performing arts, and it was endorsed by six associations: the Congress on Research in Dance, the Dance Critics Association, the Dance Films Association, the National Dance Education Organization, the Society of Dance History Scholars, and the Theatre Library Association. Since then, the DHC has secured a seventh endorsement from the multidisciplinary Popular Culture Association/American Culture Association.

Copies of the Statement are available for PDF download and hard copies can still be ordered by contacting the DHC office, DHC [at] danceheritage [dot] org.

View the special webcast of the media event launching the DHC's Best Practices Statement. Speakers included dance field leaders and copyright experts such as Professor Peter Jaszi, noted intellectual property rights attorney at the Washington College of Law, Professor Pat Aufderheide of the Center for Social Media at American University, Executive Director Jane Bonbright of the National Dance Education Organization, scholar emeritus Naima Prevots on behalf of the Society of Dance History Scholars, Judith Lynne Hanna for the Congress on Research in Dance, among others.

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Impact on the Field

The DHC is interested in collecting case studies where the Fair Use Statement or other invocation of the Fair Use Doctrine has helped to ensure that dance legacy is available to all.

Example 1: The documentary of the personal and professional partnership of dancer Carmen De Lavallade and her husband-choreographer Geoffrey Holder finally achieved public release in 2009, thanks to making a fair use claim on music and footage in dance clips used within the film. Read the Dance Films Association press release.

Example 2: Jacob's Pillow Dance Festival is making performance video clips from its archives available online, thanks to Fair Use principles applied from the DHC Statement. Read the press release and see this wonderful dance resource.

Example 3: Now that the DHC traveling exhibition of "America's Irreplaceable Dance Treasures" has closed, the DHC is planning to adapt it to an online version. The DHC had collected permissions for each item in the exhibit, but now that the Best Practices Statement has been released, creating an online version of the exhibition falls within fair use principles. Look for a new Treasures exhibition, with enhanced content and critical articles in early 2012.

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More Resources on Fair Use

Additional information of how the Fair Use Doctrine in the Copyright Act can be applied legally is available on the website of the Center for Social Media.

Statements on Fair Use have been issued by other constituencies, notably documentary filmmakers, film critics, media educators, among others, more samples are available here. And there is a Code of Best Practices for fair use in online media, which can be found here.

The Copyright Office defined Fair Use guidelines for decrypting DVD video to use in academic contexts in 2010. Read more: www.insidehighered.com/news/2010/07/28/copyright and centerforsocialmedia.org/blog/fair-use/fair-use-victories-dmca.

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"Fair Use" as a Tool for Documentary Filmmakers


The Dance Heritage Coalition and Dance Films Association co-sponsored a panel and discussion on Fair Use for documentary filmmakers on Friday, January 4, 2008. The New York Public Library for the Performing Arts hosted the event in its Bruno Walter Auditorium. The panel explored ways that Fair Use can assist independent filmmakers in satisfying requirements for Errors & Omissions insurance that is needed for the film or video to get wide release.

Panelists included Peter Jaszi, notable copyright attorney and Washington College of Law professor who advised the Documentary Filmmakers' Best Practices Statement; David Van Taylor, director of the 1992n documentary film "Dream Deceivers: The Story Behind James Vance vs. Judas Priest" for which he used a fair use claim for subsequent wider release of the film (including online); Annette MacDonald, director of a documentary on the dance career of Jack Cole, which has hit copyright obstacles; and Jan Schmidt, curator of the Jerome Robbins Dance Division at The New York Public Library for the Performing Arts, who spoke on how copyright and access restrictions specified in donor agreements can affect how easily materials can be made available.


Photos: Peter Jaszi (left) speaks to then-Dance Heritage Coalition board chair Norton Owen before the Fair Use Panel.

Panelists pictured above from left to right: Peter Jaszi, Washington College of Law, American University; Annette MacDonald, documentary filmmaker; Jan Schmidt, curator of the Jerome Robbins Dance Division, NYPL; and David Van Taylor, documentary filmmaker.

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