Sharing Dance Digitally: Understanding Issues of Copyright & Access

From January to April 2017, I team-taught a class entitled, “Digital Footprints: Archival/New Media Research at The Library for the Performing Arts,” with Professor Paul Scolieri from Barnard College. The class was a fulfillment of a grant from the Mellon Foundation received by the Columbia Center for Teaching and Learning.  The CCTL developed a tool called MediaThread to combine images and footage with annotated text to create a visual as well as written learning experience.  The students met at the Library for several sessions to interact with archival material, to discuss the pros and cons of using technology to communicate their theses, and to begin their journey as professional researchers.  Two of the students from the class continued their work with us this summer as interns.

One of those interns was Lexa Armstrong, a sophomore at Columbia College. She worked on a project to determine whether copyrighted material could be made available for digital access. Here are some of her thoughts on her experiences at the Jerome Robbins Dance Division: 

Growing up during the advent of YouTube, Vimeo, and other digital media platforms, I have viewed an innumerable amount of dance videos and rarely questioned the favorability of such access. I assumed dance’s popularity on the web and television would only help advance the art form that I’ve earnestly studied in the studio, onstage, and in the audience. One would assume that the more public exposure of dance (even if on small screens), the better, right? This summer, as an intern at the Jerome Robbins Dance Division, I grappled with copyright’s role in dance, and began to understand how access does not always correspond with desired exposure. I worked to identify moving images in the Division’s collections that might be legally shared beyond the library’s walls through the New York Public Library Digital Collections.

America’s first federal copyright law was instituted in 1790, and the procedure has become widespread since. The legislation was initially intended to protect a creator’s rights to earn money from their work, though more auxiliary objectives have since been added - in practice, if not in law. Now, almost everything that you buy, read, watch, and consume is protected by copyright.

The focus of my work this summer was choreographic copyright, or copyright of dance choreography, which can protect more than just financial stability of creators. By limiting the licensing of their choreography to the dance companies they choose, rights-holders can protect the integrity of their work. The dance community, particularly in ballet and classical modern dance, typically respects implied artistic entitlements. Creators are generally able to control how their work is presented and ensure it is up to their standards. For example, rights-holders may require their work to be rehearsed by the original choreographer or a répétiteur. This is a double-edged sword. While beneficial to the finances and legacy of creators, there are cultural costs accrued from the exclusivity of copyright; namely, inaccessibility of the choreographic work to those unable to attend its limited performances.

The Jerome Robbins Dance Division aims to expand access to dance footage so more people can familiarize themselves with otherwise ephemeral choreographic works. While the Division greatly achieves this for anyone who can take a trip to the Library for the Performing Arts, nearly all of these moving images are only accessible on-site at the Library at Lincoln Center due to copyright restrictions. Therefore, this trove of resources is available to a very limited audience, relative to the potential mass viewership engaged via the Internet. While I appreciate the role of copyright as a guardian of creators’ financial stability and artistic integrity, I feel that the duration of copyright is unnecessarily long. For unpublished materials, which comprise the majority of the Division’s collections as they are archival in nature, copyright lasts 70 years after the death of the last creator. Financial compensation for a creator’s work is of less importance postmortem. While maintaining posthumous artistic integrity is considerate, limiting access also stifles others’ awareness of, and potential inspiration from, the work.

Since it is necessary that cultural institutions such as the New York Public Library adhere to copyright regulations, I used the 70 posthumous year copyright standard as my model for unpublished works. I began my project by researching the earliest films in the Dance Division’s archive, and was able to locate copyright records for over 100 of these films. Those records suggest that these earliest films may be legally shared online without restriction. Most of them are nearly a century old, as their age makes them more likely to be in the public domain. A work should be in the public domain if its creators or heirs no longer have legal rights to its duplication or distribution. If an item was published before 1923, it is legally in the public domain due to its age. As I have learned, it is challenging to clear historic films created since the 1920s, as rights often belong to a deceased creator or uncertain heir.

  This challenge that is posed to cultural institutions such as NYPL causes many patrons to turn to YouTube, Facebook, Instagram, and more to view recent videos of dance posted directly by companies, dancers, or choreographers themselves. These online platforms also have historic content. A YouTube video of Peter Elfelt’s 1903 recording of Royal Danish Ballet dancer Ellen Price performing a solo from La Sylphide has over 43,000 views. The Dance Division holds a version of this moving image in its collection as well, with an archive original on 16mm film. I researched its copyright status this summer, and learned that while the original footage was from 1903, the library’s copy - and the YouTube clip - are likely from cinematographer Ole Brage’s 1979 compilation, in which he added piano music to the previously silent film. Brage’s creative addition to the film makes it a “derivative work” from Elfelt’s original, and justifies its copyright for nearly another century. By uploading the video on YouTube despite copyright restrictions, tens of thousands of people - who likely would not have been able to visit the library - have been exposed to this prime example of early 20th century ballet.

Though YouTube and other user-controlled websites certainly expand the accessibility of dance on screen, the impermanence of such online platforms relative to the Digital Collections, for instance, pose a challenge to longevity and scholarship. Due to the ever-changing nature of websites like YouTube, and the liberty of users to post, edit, or delete uploads as they please, resources such as the La Sylphide clip may not be online for posterity. In my idealistic envisioning for the Dance Division’s future, I see more recent films (post-1920) being added to the public domain of the Digital Collections. This way, their online permanence and high-quality digitization is guaranteed. The inevitable question is—how?

Increasing the accessibility of recent moving images would require the Dance Division to gain express permission from the rights-holders of the materials. This may involve choreographers, performers, composers, musicians, cinematographers, and costume, set, and light designers. This process is both time-consuming and precarious, as some artists might reject requests for online publication of their work to maintain their financial sustainability or artistic integrity.

Cultural institutions perpetually walk the fine line between preserving too much (to the detriment of creators) and preserving too little (to the detriment of the public). My meeting with the NYPL copyright and information policy coordinators shed great light on how the library as a whole handles such controversial issues in intellectual property.

Before broadly releasing digitized work on the Digital Collections, the rights clearance specialists at NYPL check to see that it is not still in the possession of an active rights-holder. If the status is not immediately evident (such as a clearly effective copyright record), they perform a due-diligence search: tracing the transfer of rights from the creators to today’s heirs as closely as possible. This can include reaching out to family members, estates, and other cultural organizations for contextualizing information. Sometimes, however, there are no identifiable or reachable active rights-holders. In this case, the rights clearance specialists adhere to the practice of “risk analysis,” a theoretical and investigative study in which the public benefits of sharing the material online are weighted against the potential private harm to an unreachable creator. These factors are analyzed on a case-by-case basis. While the material could typically not be disseminated online without express permissions, exceptions are sometimes made in alignment with Library’s ambitions to expand accessibility to these materials, and aided by legal exemptions for cultural institutions, such as with digitization for preservation.

Employing risk analysis while evaluating a video’s potential to be shared exercises a more flexible, human approach in determining how creative work should be shared. By weighing the benefits and consequences to both creator and audience of a potential publication, NYPL is justly prioritizing people over rigid policy. I hope that through these practices, the breadth of dance videos widely shared via the Digital Collections continues to expand, ensuring the preservation and accessibility of these treasures for generations to come.