Mathilde Pavis – University of Exeter
Ever-evolving law, immoveable conceptions
Intellectual property may be the area of law which engages the most with the question of innovation. Designed to protect but also encourage creativity, copyright law regulates an ever-evolving field and thus became the subject of continuous changes. Despite this frequent legal re-fencing of new artistic practices, we can hardly describe copyright law as adopting new perspectives on core concepts such like creativity or authorship. The scope of the law is enlarged and extended to new creative products but the relevance of its central principles are yet to be re-assessed.
The legal situation of performers is a perfect illustration of this situation. Even though the art of performing has evolved to a degree where performers’ creativity is recordable, the successive reforms never challenged this archaic author/performer divide which dates back to the eighteenth century.
Explaining the author/performer divide
A variety of factors and phenomena played against the development of performers’ rights and reinforced the divide. The legal literature was able to dismiss every one of these arguments built against performers’ case, but one: the belief in performers’ lack of creativity. Performers are seen as lesser artists because less creative than authors which make them unworthy of (legal) authorship (i.e. copyright).
Linking this observation to the findings of creativity research,  this conception of performers appears to be based on a cultural model of creativity from which two core principles particularly affect performers. The first principle is the belief according to which true creativity can only occur ex nihilo, whilst the second adopts a ‘disembodied’ and highly intellectualised vision of the notion. This note highlights the impact of these beliefs on the legal narrative before suggesting a third possible explanation: the invisibility of performers’ creative input, to the layperson’s eye.
Ex nihilo creation and Performances
Performances, leaving aside improvisations, are by definition the embodiment on stage, in public, or on record of previous works. Indeed, they intrinsically rely on previous works – the composer’s, playwright’s or choreographer’s – to take form. As such, they cannot be considered as ex nihilo creations which are regarded by western cultures as the only form of true creation. Unlike performers, authors are seen as creating from nothing and, therefore, deserve the privilege of authorship granted by copyright.
It must be stressed that such argument can easily be defeated when one considers that policy-makers did manage to work around such ex nihilo bias when reforming the law to introduce sound recorders and arrangers to the list of eligible copyright holders. Furthermore, the notion of creation in a vacuum, where authors can be regarded as the sole source of meaning and originality of a piece has been adamantly challenged for the past decades by legal scholars walking in the steps of Michel Foucault and Roland Barthes.
A disembodied approach to creativity
The second principle which seems to colour western cultural understandings of creativity is its depiction as a ‘disembodied process’, which itself is the result of two combined assumptions: (a) creating is an intellectual endeavour and (b) performers function like puppets.
These two beliefs combined lead the courts to attribute the modifications suggested by musicians during the production of a song to the composer, denying the former their claim to joint-authorship (Hadley v Kemp (UK) (1999)). However, very recently, the ninth circuit court in the United States seems to have taken a completely different stance on performing. In the Garcia case, the judges acknowledged performers’ creativity going against all the comments made here above and explicitly erased the author/performer divide (Google v Garcia US (2014)). Nevertheless, this decision is far from having reached any consensus in the judicature or the legal scholarship. It was also contradicted, few months later, by the seventh circuit court in the (Banana Lady case – US (2014)).
Copyrightable authorial works traditionally take the form of a material product (e.g. the book, the painting, the record). As such, its boundaries and thus its creativity may be asserted more easily, issues arising from subjectivity in such assessment left aside. Performances on the other hand, are immaterial. As interpretations of previous works, their creativity may be difficult to grasp and consequently not attributed to the performers because the boundaries of the performance itself are uncertain. The layman’s eye is less likely to ‘see’ performers’ creativity because she is unable to identify where the originality of the underlying work ends and that of the performance begins, or what constitutes the input of the author compared to that of the author.
In order to initiate a change in our legal understanding of performances, performers’ input must be made visible or explicit to policy makers.
Making the invisible visible: Disability Dance
It is held that the practice of professional disabled dance artists is capable of bringing evidence of performers’ creativity thanks to its ability to make the embodiment process perceivable to the untrained eye. To illustrate this point, I invite you to watch the video record of Caroline Bowdich’s performance of Joan Clevillé’s work Love Games, available at: Click here to watch video.
The footage of the video shows two performances of the work. On the left hand side one can see the interpretation of the work by two non-disabled dancers whilst on the other half of the screen shows Caroline Bowditch’s performance of the piece (Caroline is a wheel-chair user and dancer of a very petite build). Now, even though it is the same work, the two performances bear visible differences. The differences are so visible because the physicality is different but also because choreographic works heavily rely on dancers’ body. Now see, the difference is the performers’ input in the work written by the author.
The performers’ disability essentially acts as a magnifying glass stressing the dancer’s input in the choreographic work by highlighting the adjustments she needed to make to embody the piece. It is submitted that such adjustments are required whether the performing body is disabled or not because there are no two identical bodies. As a result, every performance of a work is bound to have been adjusted to one’s body, history and set of skills. This process of embodiment is at the heart of performing and bears just as much creativity as does writing musical scores, dialogs or choreographic steps. ‘Embodying’ a work requires the same amount of skills, effort and creativity looked for by judges when they assess a work’s eligibility to copyright protection. Yet, this embodiment process is completely disregarded and ignored to the extent of perceiving and legally protecting performers as the lesser artists of our society, as ‘neighbours’ of authors.
For intellectual property laws to tackle this challenge and unite performers’ rights to copyright, more than tangible data, new perspectives on performances is required. Copyright law would have to renew its core concepts to better fit the performing arts in its framework; an unprotected art form which remains a pillar of our culture. Failing to reform the law, our cultural environment risks to see a vast amount of performance-based practices and works failing to reach our cultural heritage for their artists lack the legal support they need to sustain their art.
1] Arnold R, Performers’ Rights (4th edn, Sweet and Maxwell 2008) 8-11
 Sawyer RK, Explaining Creativity The Science of Human Innovation (2nd edn, Oxford University Press 2012) ; Sawyer RK, “Western Cultural Model of Creativity: Its Influence on Intellectual Property Law, The Symposium: Creativity and the Law” (2011) 86 Notre Dame L. Rev. 2027
 Ex nihilo is the Latin form of ‘out of nothing’. See Sawyer ibid. Rahmatian A, Copyright and Creativity The Making of Property Rights in Creative Works (Edward Elgar 2011)
 Copyright, Designs and Patents Act 1988, S 5A, 5B and 5. Since the Copyright Act of 1911, broadcasters and sounds recorders were granted rights in the line of copyright whilst performers’ protection was only placed on the Parliament’s agenda in 1925.
 Foucault M, What Is an Author (P Rabinow ed, London: Penguin 1984) ; Barthes R, The Death of the Author (Image musi, Fontana Press 1977); Woodmansee M, The Author, Art, and the Market – Reading the History of Aesthetics (Columbia University Press 1994); Jaszi P, “Toward a Theory of Copyright: The Metamorphoses of ‘Authorship’” (1991) 1991 Duke Law Journal 455; Jaszi P, “On the Author Effect: Contemporary Copyright and Collective Creativity” (1992) 10 Cardozo Arts & Ent. L.J. 293
 Hadley and others v Kemp and another  All ER (D) 450
 Garcia v. Google, Inc., No. 12-57302 (9th Cir. Feb. 26, 2014) available at: http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000725 <accessed 13/11/2014>.
 Conrad v. AM Community Credit Union, case no. 13-2896(7th Cir. Apr. 14, 2014). Available at: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D04-14/C:13-2899:J:Posner:aut:T:fnOp:N:1326031:S:0 <accessed 13/11/2014>.
 For a deeper legal analysis of the clip see : Waelde C, Whatley S and Pavis M, “Let’s Dance! But Who Owns It?” (2014) 36 European Intellectual Property Law Review 217
 Performers’ rights stand under the umbrella term of ‘neighbouring rights’.