Imagine adapting to someone else’s work, do you know the original creator of the work can sue you and get remedy by compensation? The world is developing day by day and there is more credence given to copyright. Copyright is one of the intangible rights that give the author or creator of a work the right to choose what to do with his creation. T here was a moment that a dance challenge went viral in 2018, #DoTheShiggy which was inspired by Drake’s “In My Feelings’. This dance originated from comedian and online personality Shiggy who is also the creator of The Shiggy Show. The hashtag of the Shiggy dance was birthed by his good friend, New York Giants Star wide receiver, Odell Beckham Jr. who is also known for his spectacular dancing skills. Shiggy said he didn’t necessarily mean to start a viral video dance craze but “just felt like dancing”. Many celebrities participated in the dance challenge and even drake himself did the Shiggy onstage during his Wireless Festival set in London. Shiggy responded to claims that Drake paid him $250, 000 for the success of his viral “In My Feelings” challenge, when he went live on Instagram denying having received any money from Drake. Modern professional dancing consists of quicker body movements that simply go with the rhythm of songs, with no idea to express and mostly, no audience to show to just like Shiggy did, so does that mean that such choreographies shouldn’t receive protection under copyright laws?
2.0 USA Copyright law
Article I, Section 8, clause 8 of the US Constitution gives the power to Congress to promote the progress of useful arts by securing the author’s exclusive rights to their creations. This is famously known as the Progress Clause. Choreographies was not included in the Copyright Act of 1909. It wasn’t until 1976 that Congress categorized choreography as a separate viable form of art, allowing copyright protection. This act lays down the requirements for copyright registration of a choreographic piece under Section 102 (a) (4) as ‘pantomimes and choreographic works’ of which there must be a high level of originality and fixation. The case of Feist Publications v. Rural Telephone Service set the feist standard of Originality which stated that originality has two requirements – the work must be independently created by the author, as opposed to copied from other works, and that it possesses at least some minimal degree of creativity – a telephone book publisher simply listing the subscribers in alphabetical order is not putting in any creative effort because this method has been used over time in telephone books and is not a creative selection or arrangement of information, however, a new method to arrange the names on the list could be considered creative in terms of selection. In the famous case of Horgan v. MacMillan, Inc., the District Court was of the opinion that mere pictures of dancers just showed stills that could not possibly be used to reproduce the entire ballet, and therefore, one could not create a stage performance with the help of photographs alone. The Appellate Court, however, overturned the decision of the District Court and stated that a picture capturing even a single dance movement can communicate a lot. The need for originality or creativity cannot be overemphasized for choreography to enjoy copyright. In February 2019, Alfonso Ribeiro, the actor who played Carlton on the TV show “The Fresh Prince of Bel-Air” sued Take-two and Epic games for using his Carlton dance in their respective video games. However, the US Copyright office refused to grant him the copyright to the dance as a mere swaying of hips – which was the whole idea of Carlton dance – has no originality or creativity.
3.0 Nigerian’s Perspective on Copyright protection for Dance
The Nigerian Copyright Act extends copyright to dancers. With the amendment of the Act in 1999 and re-codification in2010, section 26 provides for a Performer’s right as part of Neighboring Rights under Part II. Section 27 of the Act also provides for the duration of the Copyright protection of the performer which is for fifty years from the end of the year in which the performance first took place. The copyright act 2004 of Nigeria includes literary works (choreographic works), as eligible for copyright. The Nigerian Copyright Act also provides for both civil and criminal remedies although argued to be inadequate as it has not deterred infringers. By the provision of section 30 (1) any person who infringes on a performer’s right shall be liable on conviction to a fine: (a) in the case of an individual, a fine of
N 10, 000 (b) in the case of a corporation, to a fine of N 50, 000 (c) in all other cases, to a fine of N 100 per copy dealt with in contravention or to imprisonment of twelve months or both. From the Nigerian perspective, the Shiggy dance has originality and creativity. The dance trended for a whole full year taking Drake’s “In my Feelings to number 1”. Though the dance was birthed in Shiggy friends name, Shiggy was the person who created the dance and has full right to determine what happens to his performance.
In a nutshell, the proliferated Shiggy dance of Drake’s “In my feelings” has full originality or creativity and can enjoy Copyright Protection If Shiggy had actually registered it. Though an unregistered performance can still enjoy copyright protection, the chances of winning a lawsuit or continuing the case are very low.
About the Author
Kodjovi Daniel is a 100 Level law student of Lagos State University