Trying to Stay Off a Reality TV Show? Maybe Try Dancing Whenever the Cameras Are Around!

Curt Sachs once said that “dance is the mother of the arts.” Sounds very eloquent, doesn’t it? You can’t help but think of a beautiful ballerina gracefully cascading along the stage, performing in front of an adorning audience. Now, take this quote and those serene images, place them on train tracks, wait for speeding train to hit, and…boom! You now have Dance Moms, Lifetime’s latest so-called reality show and voyeuristic indulgence featuring infamous dance studio owner Abby Lee Miller, several of her young dancers, and their overbearing moms. The show appears to be loosely scripted, at best, to contrive needless drama and controversy. Does anyone seriously believe that these moms were genuinely outraged by the “wildly inappropriate” costumes their daughters were wearing? Pah-lease!

 

Not surprising that the best they could do was Wednesday nights at 10 p.m. on Lifetime. (Although we can all be grateful to the show for helping to bring the phrase “prosti-tots” into the vernacular. So, you know, thanks for that.)

Before I write any further, I should probably confess that I am both a former dance competition kid and, by definition, a dance mom. Like the Abby Lee dancers, my 11-year old daughter dances nearly 20 hours a week, performs in nine group routines and two solos, and attends many of the dance competitions and conventions featured by Lifetime. So, are the rest of us dance moms angry that the show entirely ignores the positives of youth dance in favor of gross sensationalization? That it fails to point out that, instead of coming home from school and sitting on the couch playing video games, these dance kids are getting incredible exercise, learning an art form, gaining performance skills, building self-confidence and creating life-long friendships? That it ignores how the drive and ambition these kids build as young dancers will launch them into a variety of successful, non-dance careers? Absolutely. Am I writing this blog to express my disdain for Lifetime’s unfair and irresponsible depiction of the dance world? Maybe. But behind all the pirouettes, the show raises some interesting and novel legal issues. Really.

Several weeks ago, I had the no-so-lucky experience of encountering the production crew for Dance Moms at two different dance competitions my daughter attended. Of course, their primary purpose was to tape the Abby Lee dancers in action, presumably hoping to gain more salacious footage, and to solicit other people interested in being on the show — or so they said. In the course of taping the Abby Lee darlings, however, they were also blatantly taping many other dance numbers from other dance studios who had not consented to appear on the show and, in fact, did not want anything to do with it. At times, Lifetime’s cameras were only several feet away from the girls as they danced on stage, leaving many irritated — and, perhaps putting them outside of Lifetime’s target casting group, decidedly sane — parents and studio directors asking the same question: can they really do that? Let’s break it down.

And 5, 6, 7, 8…

Lifetime claims that they were free to tape anyone in the audience and the dance performances by non-Abby Lee dancers because its production crew posted a sign on the door of the event ballroom, which stated, in summary, that by entering into the filming area, you were consenting to the filming and to the use of your image and/or likeness in all media, in perpetuity, throughout the world, etc. These notices usually look something like this. Crowd consent notices are typically used when filming outdoor scenes in which members of the general public or passersby may be inadvertently picked up in the filming. Under normal circumstances, these posted consent notices are effective, and pictures of the postings are often included as part of the deliverables of a film to demonstrate that the rights have been cleared. But these notices might not be the end of the story here.

Lifetime’s posted consent notice — and the fliers that the production crew distributed to parents (which I happened to receive) — specifically stated that they were filming for a new show entitled Just Dance, not Dance Moms. Why would they do this? Because everyone had already heard about Dance Moms, knew what it would be like, and wanted nothing to do with it. Presumably, producers therefore pretended to be part of another show. Given that the first episode of Dance Moms aired literally only days later, the Lifetime crew unquestionably knew the name of the show for which they were filming and intentionally chose not only to conceal it, but to affirmatively misrepresent it as another, nonexistent dance show. Clever? Not so much.

To be valid, consent must be informed, and cannot be obtained through fraud. By representing that it was taping for a different show, Lifetime appears to have intentionally misrepresented the show for which it was seeking consent, thereby calling into question the validity of the consent notice itself. And while (as we’ve discussed in this space) reality producers routinely get away with this kind of deception, they do so via individually-signed waivers which, among other things, expressly release any claims for misrepresentation by the producer in obtaining the release. By relying simply on posted notices, on the other hand, Lifetime leaves the door open for anyone who appears on the show to argue that they were fraudulently induced into entering the arena and, thus, any purported consent is invalid. Sure, maybe being tricked into consenting to appear on one dance-themed reality show versus another may not be as bad as being duped into putting up your food truck to serve as the location for a pornographic film shoot. But we’re just talking matters of degree.

But Lifetime doesn’t just have the crowd to worry about. That’s because it went beyond filming unsuspecting and adoring parents and excited kids running around backstage: Lifetime actually filmed the dance routines from other studios as they performed on stage — in many cases, over the strong objections of the studio owners and choreographers. Now, Lifetime’s clearance lawyers don’t just have to worry about angry parents — they may have some copyright lawyers to contend with.

First of all, all of the routines were performed to pieces of music. While the event host would be responsible for paying appropriate royalties to the performing rights societies (i.e., ASCAP or BMI) for the use of the songs in connection with the live performance (dance studios are also required to pay similar royalties to these societies for use of music in connection with their regular instruction), putting those songs on TV would require Lifetime to obtain its own synchronization license from the owner of each sound recording. Lifetime seems to have gotten around this by showing dance footage without using the actual music to which the routine was performed.

More interestingly, though, Lifetime may have to look over its shoulder for some angry-looking choreographers wielding legal briefs. As regular readers of our blog and personal fans of mine (hi, Mom!) well know, choreography is protectable by copyright. The Copyright Act of 1976 specifically includes “choreographic works” among the types of works eligible for copyright protection. With that protection comes all of the rights and benefits of copyright ownership, including, among other things, the right to reproduce the copyrighted work, to create derivative works, to display the work and to publicly perform the work. In other words, even if Lifetime can establish that every performer consented to appearing on its show, it may still have to answer to choreographers who never consented to their work being reproduced and broadcast on television — and who may be entitled to up to $250,000 in statutory damages to make them feel better about it.

Although existing jurisprudence regarding copyright protection for choreography is pretty sparse, the continued expansion of reality television means that us lawyer-fans can watch some great dancing, indulge in some serious reality TV histrionics, and expand this area of law, all at the same time. For example, a controversy recently arose when some astute viewers alleged that hip hop duo D-Day Twins stole the choreography for their So You Think You Can Dance? audition from another hip hop pair, Laurent and Larry Bourgeois (although the debate over the propriety of the D-Day Twins’ actions doesn’t appear to have gone past internet blogs, Twitter posts, and — I assume — back-alley dance-offs). As the Dance Moms trainwreck — err, that is, season — progresses over the coming weeks, don’t be surprised to see choreographers taking action against the unwanted inclusion of their dance pieces on the show.

In the meantime, I leave you with the best piece of advice Abby Lee has given to her hyper-controlling dance moms thus far: “Go get a job and come back and pick your kid up at the end of the night.” So true, Abby, so true.

 

 

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11 Responses to “Trying to Stay Off a Reality TV Show? Maybe Try Dancing Whenever the Cameras Are Around!”

  1. river says:

    who doesn’t love an adorning audience. both morale-boosting and aesthetically pleasing! :)

  2. Mac says:

    “To be valid, consent must be informed, and cannot be obtained through fraud.”

    If that is true, then why did the consents for ‘Borat’ survive the court cases?

    That was an even larger example of exactly the same behaviour – they not only directly lied to the people who were ‘consenting’ – but they had fake websites set up so that if any of them searched for more details they would only find more lies rather than the truth.

    The ‘consents’ for those filmed in Borat survived court cases. Why?

    Mac

    • Julia Haye says:

      Hi Mac:

      The waivers used in Borat and the generic signs posted by the producers of Dance Moms are different in several respects. In Borat, the producers obtained individually signed waivers from each participant, whereas with Dance Moms, they simply posted a generic sign which claimed gave them the right to use footage of anyone who performed on the stage at the event. Further, the court in Borat was apparently persuaded by the strength and clarity of the language contained in the waivers used.

      For further discussion, please see this posting:

      http://www.lawlawlandblog.com/2010/06/covering_your_jackass_lessons.html

      I hope this helps.

      Best,
      Julia

  3. Julia,

    Great post, very thorough, insightful and engaging.

    You’ve gone a long way to helping reality producers understand that clearance is more complicated than merely posting a sign, or getting a release signed by whatever means available.

    I look forward to reading more of your posts.

  4. emily says:

    Why did you make this up? Sounds like yourself you are a “Dance Mom”, since you mentioned it…… Angry and revengeful because your daughter didn’t get on the show huh?

    Actually The producers on the show did obtain pre-clearance from the music pieces through licensing companies libraries, and the choreographies were made on these original pieces and they weren’t switched for the TV broadcasting of the show.

    • Jan says:

      Why would you say that she made it up? Not to start an argument, but she did not want to be on the show, like most normal parent, with brains, common sense and ethics.

      As a dance teacher, a dance judge, a dance mom and grandmom and retired studio owner, I am insulted by this horrible show. I watched one episode and was red in the face, with anger, at this, so-called, representation of dance and competitions.

      Speak your opinion, Emily, but be grown up enough not to use immature comments like, “Sounds like yourself you are a “Dance Mom”, since you mentioned it…… Angry and revengeful because your daughter didn’t get on the show huh?” I expect that from a 9-year old, not an adult, or even a teen.

      • Julia Haye says:

        Hi Emily and Jan:

        Thank you both for your continued interest in this topic. It is great to see that many months later, the topic of copyright protection for choreography is generating continued interest (and that my articles continue to garner attention).

        Emily, I believe you misunderstood the point of the legal analysis. I would assume that the producers properly obtained sync licenses for the Abby Lee numbers featured in the show. But that is not the issue raised in my article. The issue I raised was whether they obtained licenses for each piece of music when videotaping the other, numerous dance acts from other studios, which are generally used for filler and in/out shots on the show. For these mumbers, it appears that the music is not featured in the show. (Obviously, if the producers had the wherewithall to chase down licenses for these songs, they surely could do so, but it seems like an expensive prospect for such small footage. And, given that they other studios are not associated with the show, they couldn’t clear the songs ahead of time. They would literally have to chase down licenses after-the-fact.)

        But more importantly, my article does not take issue with the chroeography for the Abby Lee dances featured on the show. Rather, it takes issue with the producers freely videotaping the works of other choreographers from other dance studios who happen to be at the same event. The point is to raise awareness of the fact that one cannot simply videotape the works of other choreographers (who are not part of the show) and use that footage without obtaining a license to do so. Again, the producers likely attempt to get around this by keeping the shots incredibly short so as not to implicate the choreography. Or, maybe they are refining their production and are reaching out to obtain licenses from the choreographers from other studios whose works are unwillingly videotaped before using their works as filler shots for the show. Either way, the point is that the choreographers from other studios have created protectible works that cannot be taken for granted simply because their piece was performed at an event that the Abby Lee dancers happen to be at for the Dance Moms show.

        The goal is for the broader entertainment community to understand, that choreography — like virtually every other minute protectible element in a film or television show — is protectible and must be given the same respect (and clearance) as these other rights. With heightened awareness, maybe choreography, like other protectible creative works, will gain increased commercial value.

        Best,
        Julia

  5. Jan says:

    Julia, good for you and thanks for posting. This show is a travesty.

  6. Donna says:

    This may not be entirely relevant, but Lifetime is in the process of producing another show entitled “So You Think Your Kid Can Dance”, so if that is what they said I can’t see the likelihood of any law suit ever being successful. It’s rather strange to see the reaction a lot of dance parents and dance families have to a production company filming at such a large event. If they posted notices and handed out flyers, and you stayed there, then I would think that they are covered. I see this article as only making a mountain out of a mole hill. Best wishes to all that were involved.
    And no, I am not associated with any company, I am a dance mother.

    • Julia Haye says:

      Hi Donna:

      Thanks for reading my post and joining our discussion. The point of all of our blogs is to discuss novel legal questions and, in this case, to raise awareness to the copyright protection afforded to choreography. What is practical and what will actually happen, of couse, is another story.

      One of the issues with reality shows filming at dance competitions is that the competitions generally do not disclose in advance whether taping will be occuring at a specific event — at the time when dance teams are required to sign up and fork over hundreds of dollars to register for the event. If the competitions consistently disclosed this information before the registration deadline (or if they were willing to give refunds if teams chose not to stay upon learning of the filming), then there would be an informed choice. If the competitions are putting parents on the spot to choose between being filmed against they will or leaving the event, and thereby losing the hundreds of dollars they spent to register their dancer for the event, that becomes unfair. (And as a fellow dance mom, I’m sure you would agree that one of the most expensive aspects of competitive dance is competition registration fees, especially if your dancer performs in numerous routines.) This is especially true if the notices and flyers do not properly and fully disclose the show for which the footage is being filmed.

      Best,
      Julia

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