The recent situation concerning the Haka Ka Mate traditional dance is demonstrative that intellectual property law as it now stands, does not always provide the best fit.
The Haka Ka Mate is a traditional dance that was composed by the Te Rauparaha of Ngati Toa to commemorate his escape from death. However, it is now most famously used by New Zealand’s rugby team, The All Blacks. The Ngati Toa is looking for two outcomes: recognition of ownership, and the right to get legal protection and compensation from it. The first issue has more or less been resolved as the government has agreed to negotiate with Ngati Toa in the latest Waitangi deed of settlement on how to protect the Haka. The second outcome is more problematic, as any copyright that the Ngati Toa would have, has long expired. The Ngati Toa would need the government to change the law. Special legislation would be needed to bring copyright back.
This situation raises two main questions; whether dance moves should be protected under copyright law, and secondly, whether Intellectual Property Law as it now stands, should ever be applied to the rights of Indigenous peoples.
Copyright & Dance
Since dance moves are protected under copyright law it means that an individual can “copyright the choreography for dances, and then enforce the copyright against anyone who publicly performs the dance.” Two fairly recent U.S. cases shed light on the dangers associated with copyrighting dance.
In the Martha Graham case, Martha Graham, often attributed as being the founder of modern dance, died and left her estate to a friend. The legal battle arose when the friend then claimed that he owned copyright to 70 of Ms. Graham’s dances threatening to prevent the Martha Graham dance company from performing those works. The judge held that the majority of the dances belonged to the Center due to the works being deemed works-for-hire. Had the judge ruled in favour of Ms. Graham’s friend, there is the possibility that he could have decided to withhold performance rights from the company. This would have been fatal for the dances, for the primary method by which dances are preserved is via performance.
More recently, there has been litigation involving the "electric slide" choreographed by dancer Ric Silver in 1976. Although this case was settled, with Silver agreeing to drop any claims of infringement and to place whatever copyright interest he had in the dance under a Creative Commons license, (allowing anyone, anywhere, anytime to slide without paying him), again had the outcome been different, it could have had a stifling effect.
Affording protection to the authors of dance moves always carries with it the dangers highlighted above. Should such protection be afforded to them? It is arguable that it shouldn't. Firstly, the primary method of preserving dance is via performance, therefore giving copyright to the authors of dance provides no security that these beneficiaries of copyright protection will allow the dance to be learned by others. Secondly, dancing has a strong public element to it, unlike other copyrightable works in that it needs to be shared in order to continue existing, and perhaps should be differentiated in this regard.
In full, although intellectual property has been a blessing to most, we should still always ask the important question of whether in the case at hand, it provides the best fit.