When a work is commissioned

[Tapfan]

If a ballet company has a piece commissioned, who owns the rights to that piece? The company or the choreographer?

For instance, since Balanchine was hired to create Theme and Variations for ABT, does that mean ABT doesn't have to pay royalties for the right to dance it? What about other companies? How does that whole thing work?

[Leigh Witchel]

It depends on the contract made at the time. A company could acquire all rights, but what seems most usual at present is for the choreographer to retain the rights to the work, granting a license to perform to the commissioning company for a specified period of time.

[sandik]

Ownership is becoming increasingly complicated, as living choreographers (and the legal representatives of the dead) safeguard their rights to their artistic work through copyright and other service marks. I was clicking through the Pacific Northwest Ballet website looking for information on their upcoming Christopher Wheeldon program and noticed that, on the home page for the program, in the specially-designed logo, each of the ballets being performed had the little '@' mark next to the title.

[TenduTV]

As Leigh said, it's variable.

A couple of other examples that I've seen recently.

1.) Company commissions choreographer to create work. Company has exclusive rights to perform that work for a period of time, and non-exclusive rights to perform that work in perpetuity after that time.

2.) Two companies co-commission choreographer to create work. Each company has the exclusive right to perform that work in a particular territory for a period of time.

As a side note @Tapfan - The word "hired" in this case isn't always exchangeable with the word "commissioned". For example, in the case of Martha Graham's works, it was determined that she had been hired by the Martha Graham school to perform tasks that included, among other things, creation of new choreography. Therefore, the school owned the works outright, as their creation was part of the job for which she had been hired to do. Conversely, there are some modern companies where the choreographer with whom the company is associated retains full ownership of the work, and actually licenses it back to their own company.

[sandik]

...in the case of Martha Graham's works, it was determined that she had been hired by the Martha Graham school to perform tasks that included, among other things, creation of new choreography. Therefore, the school owned the works outright, as their creation was part of the job for which she had been hired to do. Conversely, there are some modern companies where the choreographer with whom the company is associated retains full ownership of the work, and actually licenses it back to their own company.

As you might imagine, there have been big changes in this area in the recent past -- the Graham case that TT refers to here was an incredible dividing line in the dance world when it comes to ownership. Between the legal wrangling surrounding Graham's work, the complex legacy of Joseph Pilates, and the significance of the Balanchine Foundation, the landscape has been almost totally transformed.

[Tapfan]

Thanks to every person that responded.

[Leigh Witchel]

The Graham case seemed to be an example of a court willing to make bad law (finding a choreographer's works to be for hire) in order to get a good outcome (freeing Graham's works up to be done by the Graham company)

For added complexity, some countries, such as France, have the concept of the moral right of an artist to the integrity of the work - http://en.wikipedia.org/wiki/Moral_rights_%28copyright_law%29 - in United States, that is a much weaker right.

[TenduTV]

For clarification - the court didn't make any law. Work for hire definitions existed long before the Graham case went to the courts (I think it came in with the 1976 law). I'll leave it to someone more versed in the specifics of moral rights, but I don't think they apply in the case of work for hire.

Anyone looking for a really fun rights mess should look to the 35 year reversion clause that's coming into play right now (which also doesn't apply to work for hire situations).

[California]

A good, concise summary of moral rights in the U.S. is here:

http://cyber.law.harvard.edu/property/library/moralprimer.html

Moral rights are very weak in the U.S., especially compared to France, where they originated. They are only available to works of visual art, and works-for-hire are expressly excluded from moral rights protection.