Can I Use Beyoncé’s Choreography in My Next Performance Artwork Without Getting Sued? + Other Artists’-Rights Questions, Answered

What's the deal with streaming music on Twitch? Can I wear a dress made out of ballots to the inaugural ball?

Tyler Mitchell's portrait of Beyoncé for Vogue magazine. Courtesy of the artist.
Tyler Mitchell's portrait of Beyoncé for Vogue magazine. Courtesy of the artist.

Have you ever wondered what your rights are as an artist? There’s no clear-cut textbook to consult—but we’re here to help. Katarina Feder, a vice president at Artists Rights Society, is answering questions of all sorts about what kind of control artists have—and don’t have—over their work. 

Do you have a query of your own? Email [email protected] and it may get answered in an upcoming article. 

 

What is DMCA and why is everyone on Twitter angry about what it’s doing to Twitch? Also, what is Twitch? 

We get a lot of questions about video games here. And for good reason—the intersection of video games and copyright is a fairly new and complicated field. Let’s see what we can make of it.

For the uninitiated, Twitch is a platform that streams people playing video games live. The footage is usually accompanied by music that streamers pipe in through their Spotify accounts. (Mario’s bleeps and bloops aren’t exactly something you can Tootsie Slide to.) If this sounds niche, it isn’t: in 2014, Amazon bought Twitch for almost $1 billion dollars

People wait in line at booth for Twitch, the official Livestream Partner of E3 during the 2016 Electronic Entertainment Expo annual video game conference and show on June 14, 2016 in Los Angeles, California. (FREDERIC J. BROWN/AFP via Getty Images)

People wait in line at the Twitch booth during the 2016 Electronic Entertainment Expo annual video game conference on June 14, 2016 in Los Angeles. (FREDERIC J. BROWN/AFP via Getty Images)

On October 26th, a group of organizations representing music copyrightsamong them the RIAA, the Recording Academy, the Music Managers Forum, the American Association of Independent Music, and SAG-AFTRA—sent a letter to Jeff Bezos and Amazon claiming widespread copyright violations. In turn, Twitch told its users that they were “issuing you a one-time warning to give you the chance to learn about copyright law” before taking down the offending content. 

After the warning was issued, the complaints on Twitter started to pour in. It might not come as a surprise that music industry groups like the ones listed above have been policing YouTube for some time now. However, the fact that they’re now after Twitch implies an even narrower interpretation of infringement under the Digital Millennium Copyright Act (DMCA), which governs such usage. 

Why is this important to the visual artists reading this column? The licenses at issue here are complicated, involving both synchronization rights and master use rights that allow a song, and then a specific recording, to be played over a video. If you made a video work that features a pop song and put it on YouTube or Vimeo, you might find yourself receiving the same kind of “one-time warning” Twitch issued to its content creators. 

Joe Biden and Kamala Harris (Photo by ROBYN BECK/AFP via Getty Images)

Joe Biden and Kamala Harris (Photo by ROBYN BECK/AFP via Getty Images)

I’m a fashion designer who has been lucky enough to be invited to a Biden-Harris inauguration ball. I’m thinking of going in a dress made of ballots—a commentary on the power of the people. I know you’re not supposed to photograph your own ballot, but would this outfit be OK for paparazzi to photograph? 

It’s a good thing you checked with me! We wouldn’t want any more lawsuits coming out of Washington at the moment. You might upstage Rudy Giuliani’s next reenactment of My Cousin Vinny at a takeout joint called Mandarin Oriental.

Every election, the media trots out stories about why you’re not supposed to take pictures of your ballot in an attempt to combat voter fraud. But here’s another reason you shouldn’t snap a pic: those flimsy pieces of people-empowering paper are actually copyrighted.

Most voting technology used throughout the US is covered by intellectual property law,” Politico writes. “That means the touch-screen you might have tapped on to vote could be patented. The software used to process your vote could be copyrighted. Before you even got to the voting booth, your ballot was likely designed on copyrighted software.” 

As to whether or not your outfit would be acceptable, that’s hard to say. When it comes to the four factors that determine fair use, you have two in your favor: you’re borrowing copyrighted material that isn’t particularly creative or imaginative, and you’re not profiting from it directly. 

So, I think you’re safe to go for it. I have a hard time seeing Premier Election Solutions suing a well-intentioned designer for a one-off personal use like this. Should you decide to go mass market, maybe consult a lawyer—and let us know where we can buy one.

Beyonce at the Glastonbury Festival at Worthy Farm, Pilton on June 26, 2011 in Glastonbury, England. (Photo by Samir Hussein/Getty Images)

Beyoncé at the Glastonbury Festival at Worthy Farm, Pilton on June 26, 2011 in Glastonbury, England. (Photo by Samir Hussein/Getty Images)

My gallery is going to be hosting a performance that involves dancers executing the choreography of a certain Ms. Beyoncé Knowles-Carter. Is that kosher? 

This is another example of developing copyright law. So as with the Twitch question, I’d urge caution. Lawyers can be fiendish when they’re looking to establish precedent.

Copyrighting performance has always been tricky, since a major caveat of copyright is that the work must be “fixed in a tangible medium of expression.” Marina Abramović even turned this grey area into conceptual gold for her performances of other people’s work in Seven Easy Pieces at the Guggenheim in 2005. 

Dance is something that has only recently begun to be copyrighted. To return to (ugh) video games, you may recall someone named Backpack Kid and the actor who played Carlton from The Fresh Prince of Bel-Air suing the makers of Fortnite because it featured dances that they had invented. While those cases made headlines, so far they haven’t ended well for the plaintiffs, mostly due to a 2019 Supreme Court decision that emphasized the importance of registering copyrights

Hence the importance of dance registration in 2020. JaQuel Knight, who choreographed the “Single Ladies” video, recently successfully copyrighted that dance, so you may want to talk to your artist if she’s chosen to include that one in the show. 

I’ll close with a further warning that the Carters seem to have a weird relationship with intellectual property when it comes to the art world. Did Bey copy Pipilotti Rist? Did Jay-Z unfairly appropriate Marina? The real lesson here: If you like it then you should have put a copyright on it. 

Singer Fee Waybill and guitarist Bill Spooner perform live on stage with American rock group The Tubes at the Dr. Pepper Central Park Music Festival at Wollman Rink in Central Park, New York City, 18th July 1979. (Photo by Michael Putland/Getty Images)

Singer Fee Waybill and guitarist Bill Spooner perform live on stage with American rock group The Tubes at the Dr. Pepper Central Park Music Festival at Wollman Rink in Central Park, New York City, 18th July 1979. (Photo by Michael Putland/Getty Images)

In 1991, my record company, GR-RANITE Records of San Francisco, signed a contract with rock star Bill Spooner. I produced his second solo album, Mall to Mars, and created an original artwork for the CD cover, which depicts a spaceship orbiting Earth. After encountering financial troubles, I sold the master tapes to another company in 1992. I understood that sale to encompass the 10 songs on the album, with no mention of the album art. 

Fast forward to 2020: The company that bought the master has discovered streaming services, and its owner asked me for a high-resolution image of my cover art to include online. I mailed the original color separation negatives with a note that I retain the copyright to my work. 

My question: if I sold the master tapes, does this somehow imply that my copyright to the cover art was also transferred?

Any fan of music, from the Beatles through Bad Bunny, can tell you how important album art is. It is an art in and of itself, separate from the music it accompanies. Spotify warns against people using copyrighted artwork in their playlists, so you can imagine how strict they must be when it comes to actual albums. 

As mentioned earlier, copyright for fixed artworks rests with the creator, but it’s also something that can be sold or transferred, which is sometimes the case when it comes to album art. 

Steve Harvey, Frank Stefanko, and Herbert W. Worthington are no doubt talented photographers, but it’s likely the record labels purchased the copyright licenses to the photographs they used for Off the Wall, Darkness at the Edge of Town, and Rumors, respectively, in work-for-hire contracts signed by the photographers. 

There are, however, artists who reject such contracts and insist on retaining their copyright. A great example, as always, is Andy Warhol. The copyrights for those virile covers he designed for Sticky Fingers and the Velvet Underground & Nico’s self-titled debut still belong to his foundation. 

Your case is quite different, though, in that you were both record label owner and cover artist. If you only sold the master tapes, without any kind of contract regarding the cover art, then the copyright of that art still belongs to you.

So, congratulations! Should you be exploring further monetary ventures involving the Mall to Mars project, might I suggest pitching the concept to Elon Musk? It sounds like the kind of thing he could get behind. 


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