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 distain 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 forDance 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-lookingchoreographers 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 Momstrainwreck — 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.