Northern Ballet and Phoenix host the China IP Roadshow

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Ever since Northern Ballet moved to its new studios I have been looking for a chance to introduce it to my colleagues and clients (see Ballet and Intellectual Property - my Excuse for reviewing "Beauty and the Beast" 31 Dec 2011 IP Yorkshire and The Things I do for my Art: Northern Ballet's Breakfast Meeting 23 Sept 2014). The opportunity arose when I was asked by Tom Duke, our IP attaché in Beijing to arrange venues for and chair the China IP Roadshow in Yorkshire.

As Northern Ballet and Phoenix Dance Theatre create more intellectual assets than most in the form of choreography, musical scores, set and costume designs and performances and both have strong links with China I proposed Northern Ballet as the venue for the Leeds event. I was overjoyed when my proposal was accepted.

The event took place in the Boardroom on the top floor on Tuesday 19 Sept between 09:00 and 12:00. Many of Leeds's biggest law firms and patent and trade mark agencies were represented as well as the city's businesses, universities and local authority.  I invited two special guests - Sharon Watson Phoenix's artistic director who is chairing Leeds's bid to become the European City of Culture and Tobias Perkins, planning manager of Northern Ballet.

Tom spoke about China and the opportunities for British businesses in all sectors including the creative industries but warned of some of the things that can go wrong.  He recommended a number of countermeasures such as registering IP rights, getting contracts drawn up by Chinese lawyers and not leaving your business sense behind at Heathrow. Precautions that business people would take here such as requiring partners to enter non-disclosure agreements before disclosing trade secrets work in exactly the same way in China.

After Tom had answered a few questions I invited Sharon to talk about Phoenix and the City of Culture bid.  As you would expect, Sharon spoke passionately on both. Tom congratulated her on her presentation.  There were a lot of lawyers and business people who wanted to talk to buttonhole Sharon before she left the boardroom.

Tobias also spoke well. He spoke of two ways in which Northern Ballet raises revenue.  One was by performing and the company had made many tours of China over the years. The other is by licensing out to foreign companies and Tobias mentioned that the West Australian Ballet was performing David Nixon's The Great Gatsby in Perth almost as we spoke.

As the boardroom is almost next door to Studio 7 I proudly showed Tom where our 55+ class trains. Before leaving the building he asked to see the Stanley and Audrey Burton Theatre.  As Sean was in reception I asked whether it would be possible for Tom and his party to glance inside and I was delighted when he said it was.

Northern Ballet and Phoenix Dance Theatre did me proud as they always do.  I shall certainly try to arrange more such events at their premises.

Ballet, Bodywork and Bits in Cambridge

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I'm having a simply wonderful time in Cambridge. I'me here to give a talk on bilateral investment treaties or "bits" at the Cambridge IP Law Summer School and intellectual property at Downing College. As a week without ballet is like a week without sunshine I asked all my friends and followers on Twitter whether there were any adult ballet drop in classes in or near Cambridge that I could attend this week. Wendy McDermott and KidarWolf suggested Bodywork Company at Glisson Road so I gave them a call in my coffee break. I found out that there was an improvers' class at 19:30 last night. Though it clashed with a slap up dinner and quiz night in hall that the conference organizers had arranged for us, I decided to give it a go.

The Bodywork Company is quite literally in premises that must once have been a car body repair shop. The studios surround an enclosure with space for 12 vehicles where mechanics must once have mended bent fenders.  I know we say mudguards in this country but the transatlantic term has a certain assonance don't you think. The space is now used for customer parking which is as rare as hens' teeth in Cambridge.

As I don't know Cambridge very well, I got hopelessly lost and arrived at the studios with just minutes to spare.  Precious seconds from those minutes were lost when the chap at reception showed me the gents' changing room even though I was in a dress. Consequently, I arrived at class in the middle of pliés which meant that I missed the warm up and an opportunity to introduce myself to the instructor. The class took place in a medium size studio - not quite as big as those at the Dancehouse in Manchester or Northern Ballet in Leeds but considerably larger than those at Dance Studio Leeds. There was plenty of room for each of us at a fixed barre. I didn't count the numbers but I think there must have over 20 of us. All of us were female and some members of the class seemed quite young.

I learned from a copy of the timetable that I picked up after class from reception that our teacher was called Louise Howarth. Like Jane in Leeds and Fiona in Huddersfield, Louise expects a lot from her students and she made us repeat some of the exercises until she was satisfied with us. That is just the sort of instructor that I like. The emphasis was on pirouettes and Louise worked them, or preparation for pirouettes, into every exercise.  For instance, we finished every plié on relevé with our legs in retiré. We did every possible type of pirouette from first and fourth dehors as well as dedans. That was exactly the sort of class that I needed.  As everyone who has ever taught me or attended class with me knows, pirouettes are not my strongest suit.

We did a very brisk barre with the usual pliés, tendus and glissés followed by ronds de jambe and grands battements. We followed it up with a nice adagio in the centre with some much-appreciated développés and ports de bras. Then some very serious pirouette training with quarter, half, three-quarter and full turns alternating in each direction at quite a pace. Louise even worked a turn into our jumps which began not with sautés but with changements.

As always happens when one's having fun, the class ended far too quickly.  The class was in two parts - the first 60 minutes for everybody and the last 30 for the pointe work students.  The first 60 minutes cost £8 which is slightly more than the North but a lot less than London.  There is a beginners' class on Wednesday which I should like to attend and also an intermediate class on Thursday which is likely to be way beyond me. If I lived in Cambridge I would certainly attend class regularly at Bodywork and I have no hesitation in recommending the studios to denizens of that city.

If you are wondering about bilateral investment treaties, they are international agreements by which governments promise each other not to expropriate the investments of the other party's nationals. If they do, the government of the expropriating state has to compensate the expropriated investor generously. A disappointed investor has the right to bring proceedings against the expropriating state through the International Centre for the Settlement of Investment Disputes without any intervention from his home government,

"Kippers" (members and supporters of the UK Independence Party) and lefties (Mr Jeremy Corbyn MP and his acolytes, such as the lovely-lady-from-Liverpool who shares my love of ballet but whom I just can't resist teasing) would be irate if they only knew the limits that bilateral investment treaties impose on national sovereignty. In the leading case, a US waste disposal company won millions of dollars from the Mexican government because a local authority refused to let it dump hazardous waste near a public watercourse a few yards away from human habitations. Indeed, some on the left, such as the distinguished journalist George Monbiot, do know about BITs which is why he campaigned so assiduously against the Transatlantic Trade and Investment Partnership before Mr Donald Trumo scuppered the negotiations. Her Majesty's Government has made 110 such treaties mainly with third world governments which wicked British rentiers enforce mercilessly with the best of them.

If you want to know more about the subject matter of my talk on Thursday, see my article Can a business recover compensation if a state fails to protect its intellectual assets? The decision in Eli Lilly & Co. v Canada suggests "maybe" 25 July 2017.

Dance and Diplomacy: Britain's IP Attaché to China will visit Northern Ballet

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Ever since Northern Ballet moved from West Park to Quarry Hill I have been looking for an opportunity to introduce the company to my connections in intellectual property (see Ballet and Intellectual Property - my Excuse for reviewing "Beauty and the Beast" IP Yorkshire 31 Dec 2011).

The opportunity arose when Mr Tom Duke, our IP attaché in Beijing, asked me to recommend a venue for a talk that he plans to give in Leeds on 19 Sept to business owners and their professional advisers entitled Succeeding in China - Mitigating the IP Risk. I could think of no better place than Northern Ballet' boardroom in its premises at Quarry Hill.

I suggested that venue for several reasons.

First, the building is magnificent, one of the finest new structures in the city. The view of Leeds from the boardroom is breathtaking.

Secondly, Northern Ballet creates a lot of intellectual assets such as choreography, costumes, musical scores, performances, properties and set designs which are protected by copyrights, rights in performances and unregistered design rights and the Northern Ballet brand is a valuable trade mark for all kinds of merchandise. The company performs regularly in China where it uses all those intellectual assets. It, therefore, exemplifies the topic of Mr Duke's talk.

The third reason for my suggestion is that letting fees and catering services are a source of revenue for the company. It helps to fund dazzling new productions.

Finally, I hope that some of the business owners, lawyers, patent and trade mark attorneys and other professionals may be tempted to return for a show at the Stanley and Audrey Burton Theatre or even a class at the Academy which I am sure they would enjoy enormously.

If any of my readers would like to attend the talk on 19 Sept it is free. Give me a ring on 020 7404 5252 or send me a message through my contact form.  The event starts at 09:30 with registration and networking.  Mr Duke will deliver his speech at 10:00. I will also speak briefly about the things you should do here before you leave for China. There will be opportunities for one-to-one discussions with all sorts of business and professional advisors. The event will end at midday so that Mr Duke can grab some lunch before his next appointment in Barnsley.

I have also written about the event in NIPC News and IP Yorkshire if anybody is interested.

23 July 2017	Jane Lambert	IP Rights in China	NIPC News
21 July 2017	Jane Lambert	Meet our IP Attaché to China	IP Yorks

My Learned Friend at The Bolshoi

Peter Groves

Peter Groves is one of my instructing solicitors. He is also my friend. Like me he specializes in intellectual property (patents, copyrights, trade marks, registered and unregistered designs and the like). Like me he has a life outside the law. Whereas I exercise with pliés, tendus and ronds de jambe he runs. His practice takes him to Russia from time to time. Last Friday he was at the Bolshoi where he saw Spartacus. At my request he reviewed the performance. He tells me that it is his first ballet review. I do hope that it is not his last because I find it very interesting.

"I have to admit to being only an occasional ballet-goer, but a full-time music lover: so when my old friend Victor suggested that on my next flying visit (Friday evening to Sunday evening) to Moscow we might attend a performance of Spartacus at the Bolshoi Theatre it was the venue rather than the spectacle or the music that attracted me. Surely Khatchaturian was the worst sort of Soviet composer, kowtowing to party diktat, a pygmy beside Shostakovich: I had somehow inadvertently forgotten The Onedin Line (though I deliberately, for Shostakovich’s sake, put the theme music to Midsomer Murders out of mind).

Actually I find I did Khatchaturian a great disservice. Although as secretary of the Composers’ Union he was an establishment figure, he had more than his fair share of criticism, being denounced along with Shostakovich, Prokofiev and others as ‘formalist’. The more I visit Moscow, and the more I learn about Russian history, the more I realise that under whatever political system they lived most people just tried to get on with their lives, doing the best job they could under the circumstances. Put like that, was life here ever much different?

Reasoning that Mr Putin’s Ukrainian adventures meant that there would probably be no more affordable opportunity to go to the Bolshoi I agreed to the suggestion. The rouble has recently dipped below one penny, about half the rate I am accustomed to paying, so the estimated 12,000 roubles that a ticket agency would charge, though certainly substantial, was not prohibitive, and in the end it came out at a bit more than half that anyway. I could have put up with the worst excesses of officially approved Soviet music and ballet for the pleasure of a few hours in such an iconic building.

I have enjoyed several evenings out in Moscow with Victor in the past, and there was a precedent for his announcement that our tickets were not actually for adjacent seats. He gave me the ticket for the box in the dress circle, or “beletage”, a few doors along from the former Imperial (now, I was told, Putin’s) box, keeping for himself the seat in the highest balcony. Then we repaired to the buffet - Russian being a language of borrowed words - and there, naturally, we drank shampanskoye (Russian champagne) which is more than just a borrowed word. To be precise, it was Abrau-Durso, a protected geographical indication,  Victor told me, adding as he often does when we discuss intellectual property, that he had registered it himself. And very pleasant it was, though perhaps not the best form of refreshment to take after a long day travelling with an evening’s ballet to come.

Only one of the eight seats in the box was occupied when I took mine. That by a gentleman with suspiciously dark glasses who insisted I join him in the front row of three chairs. My assigned back-row chair was of a height more usually associated with bars, permitting a clear view over the other people in the box. His English being on a par with my Russian («Я профессор Российской академии правосудия»), it was with some difficulty that I ascertained that he was from Moldova. He was in town for a conference, and his delegate badge told me that it was a gathering of paediatricians. (Only as I write several days later do I realise that the Russian word for ‘doctor’, врач , is part of my limited vocabulary). Inevitably a party of three with tickets entitling them to the front seats then arrived: my new Moldovan friend had no better right to sit in one of them than I did. But the newcomers were very nice about it, and one of them spoke pretty good English, which was a bonus: I had apprehended an evening like one I spent at a concert at the Moscow Conservatory a few years ago, where a couple of ladies in the next seats valiantly tried to engage me in conversation.

The neo-classical Bolshoi theatre was restored to its former Imperial glory (with the addition of lifts, another loan-word) in 2011. It displays such opulence as to make the events of 1917 seem not just understandable but rather inevitable. The enormous curtains, for example, could have been woven from gold thread. And when they opened they revealed the most enormous stage, which seemed to go back for a hundred yards, in front of which a huge orchestra pit offered plenty of room for the 70-piece orchestra (two harps) and eventually, after Spartacus had met his gory end, even a choir.

Which makes me think: if Khatchaturian’s purpose in choosing the story was to satisfy Soviet artistic policy requirements, why this one? Oh, revolting slaves casting off their chains, that much makes sense. Spartacus has the Roman imperialists on the back foot, but his magnanimity towards Crassus backfires. Ending with the proletarian hero impaled on the imperialists’ spears struck me as off-message.

Grigorovich’s choreography dates from 1968, and this was the 307th performance of that production:. Other reviews I have read (such as this one of the same production, and most of the same soloists, from the New York Times, or this from the New York Observer, describing the production as “ghastly”) suggest that it shows. I might best describe a lot of it as clunky, although the principals - Denis Rodkin as Spartacus, Vladislav Lantratov as Crassus, Anna Nikulina as Phrygia and Maria Alexandrova as Aegina - seemed excellent and performed some extraordinary moves."

Rodkin, Lantratov, Nikulina and Alexandrova - Peter saw some of the Bolshoi's best artists. I am very jealous of him. I have yet to visit Russia but I have seen Spartacus on HDTV (see Spartacus - streamed live to Wakefield 21 Oct 2013). Nikulina danced Phrygia in that performance and to the best of my recollection she danced it very well.

Branding and Ballet - Ten Top Tips

Whenever possible I try to get the company's T-shirt when I watch them performing in a ballet. So far I have T-shirts from

• Ballet Black
• Ballet Cymru
• Rambert
• The Dutch National Ballet
• The Royal Ballet, and
• The Stuttgart Ballet.

I also have a ballet bag from the Bristol Russian Ballet School and I'be bought English National Ballet's My First Coppelia t-shirts for Vlad the Lad and my Huddersfield ballet teacher's younger daughter. It is a way of supporting those companies and one that I much prefer to the doling out of public money by the Arts Council of England. 

The reason I feel uncomfortable about it is that I can't really think of an answer to my fellow citizens who see opera and ballet as all right for those who like that sort of thing but it shouldn't be their brass that pays for it. Now don't get me wrong. I love opera, ballet and all the other performing arts. I am delighted that my beloved Northern Ballet was favoured in the Arts Council's latest round of investment in opera and ballet. But I am not sure that Arts Council funding is particularly fair to those who prefer their money to be spent in other ways and when I look across the Atlantic where just about every town of any size has its own company that is supported strongly by its local community (some of which such as the Sarasota Ballet seem to be rather good) I have to ask whether this form of subsidy is even good for the performing arts. The Arts Council was promoted by one of its first chairmen Lord Keynes (see "John Maynard Keynes and English Ballet" 3 March 2013). Like a lot of Lord Keynes's ideas that wilted under the scrutiny of Thatcherism in the 1980s direct funding for the performing arts may have to be reconsidered.

Even if the Arts Council can be justified the funds available to it for investment are unlikely to grow by much and there is also a limit to the amount of money that the hard pressed public can afford to pay for tickets or donations.  As I said in "Ballet as a Brand? How to bring More Money into Dance for Companies and Dancers" 13 March 2014 companies, theatres, dancers (at least principals) and possibly even schools and dancers will have to exploit their goodwill a little more in the way that sports stars and artists in the other performing arts have done. To that end I wrote three further articles to show how that could be done:

• "Protecting the Brand" 31 March 2014
• Branding and Ballet - Licensing the Brand 18 April 2014, and
• Branding and Ballet - Copyright and Rights in Performances 3 May 2014

This is a summary of the advice that I gave in those articles. It applies to everyone in dance - individual artists and teachers as well as institutions.

1. Register your business name and any logo as trade marks: You can do it yourself on-line for the UK from as little as £170 though I would advise you to last out a few hundred pounds more and get a trade mark or patent agent to do it for you. He or she will make a search to make sure there are no conflicting registrations, prepare a specification that covers all your needs, file it and correspond with the Intellectual Property Office or other registry until you have your grant. There are two advantages of registration, First it is easier to protect and license branded merchandise. Secondly, it trumps anything a cyber-squatter can say in a domain name dispute. If you do it yourself make sure you cover all the countries in which you want to perform or sell your merchandise and that your registration covers clothing, printed matter and anything else you can see yourself selling in the next five years.
2. Subscribe to a good watch service. A watch service scours the IPO and other patent office websites for applications that could conflict with your registrations and reports back to you if it finds any.  Most patent and trade mark agents can set up such a subscription for you though they tend to be on the pricey side. Leeds Business and IP Centre runs a good service. Call Ged or Stef on 0113 247 8266 for more info.
3. Keep an audit trail of all your artistic, choreographic, literary and musical works. As I said in "Branding and Ballet - Copyright and Rights in Performances" copyright and rights in performances are not registered rights. They come to being when a qualified person creates an original artistic, dramatic, literary or musical work or, in the case of dancers and musicians, takes part in live performances.  The best way of proving your title is by means of contemporaneous notes and logs with references back to the stave on which the choreology or music is recorded.
4. Review and keep under review all your licences and other agreements. This applies both to people who serve you such as your choreographers, dancers and musicians and also to those who want to take licences from you. Make sure these are drawn up professionally and that you enforce them.
5. Take out adequate insurance to cover claims by you and against you.   IP litigation is expensive and is usually excluded from most legal risk indemnity programs. There are some specialist companies that provide such a service and it is worth looking out for them (see my article "IP Insurance Five Years on" 23 Oct 2010 Inventors Club blog).
6. Be sure to talk to a lawyer first if you think someone has infringed your IPR. That is because some statutes such as the Copyright, Designs and Patents Act 1988 and the Trade Marks Act 1994 provide a cause of action against those who threaten litigation without justification (see "If you think someone has infringed your patent talk to a lawyer first" 11 July 2014 Inventors Club biog).
7. Carry out periodic IP audits. You are creating new works all the time and also licensing in and out other peoples' work. Make sure that everything is covered.
8. If someone infringes your rights don't ignore it. There's an expression in the law that delay defeats equity. At the very least delay in enforcing your rights could prevent your getting an interim injunction. At the worst it could be seen as acquiescence.
9. Make others aware of your IP rights.  Use the copyright symbol (c) and the registered trade mark symbol to make the public aware of your rights. That way they can't use the defence of ignorance.
10. Get your audiences on your side. Folk who have paid a lot of money for their tickets are understandably annoyed when the first thing they hear is an order not to use cameras or mobile phones. But if you explain why they will co-operate with you even to the point of stopping their neighbours from surreptitiously photographing or taping your show.

This is the last of my articles on ballet and branding. It is my gift back to the artists and impresarios who have given me so much pleasure over the years. I hope that at least some of you will find my tips useful.

Branding and Ballet - Copyright and Rights in Performances

Theatre Royal Drury Lane 1821                                           Source Wikipedia

This is the fourth in my series of articles on ballet and branding which is my thank you to companies, theatres and dancers for a lifetime of pleasure watching their performances. The others are "Ballet as a Brand? How to bring More Money into Dance for Companies and Dancers" 13 March 2014, "Protecting the Brand" 31 March 2014 and "Branding and Ballet - Licensing the Brand" 18 April 2014. In this article I shall discuss two important intellectual property rights ("IPR") for companies, theatres and dancers: copyrights and rights in performances.

What is IP?
Intellectual property ("IP") is a portmanteau terms for the bundle of laws that protect investment in intellectual assets.  Intellectual assets are creations of the mind that give one business a competitive advantage over all others. Such assets can be a new invention, a blockbuster film or novel, the cachet that is given to luxury product and so on.  

Intellectual assets fall into four categories:

• Brands
• Design
• Technology, and
• Works of art and literature.

The laws that protect the investment in creating those assets in the UK include the Patents Act 1977, the Copyright, Designs and Patents Act 1988 ("CDPA") and the Trade Marks Act 1994. The rights that those laws confer, such as patents for inventions, copyrights in original works of art and literature and registered trade marks for signs that distinguish one business's goods or services from those of all others are types of IPR (intellectual property rights). 

The exercise of those rights can be very valuable for a business which is why we regard them as property.  As they protect creations of the mind or intellect we call them intellectual property.

Copyrights and Rights in Performances

The intellectual assets that copyrights and rights in performances protect are works of art and literature. 

Copyrights have existed in one form or another since the days of Queen Anne. The first copyright statute for this country is still referred to as The Statute of Anne. Copyrights prevent the unauthorized copyright, distribution, performance and other exploitation of works that are written, drawn or otherwise created in some permanent medium such as film or optical or magnetic memory. 

Rights in performances are much more recent. These protect the performances of actors, musicians, dancers and other performers from unauthorized broadcasting, filming or taping and other exploitation of their performances. The existence of those rights has only been possible since the development of sound and motion picture recording and transmission technologies. 

The CDPA

In the UK copyright and rights in performances are conferred by different parts of the CPDA.  Copyright is conferred by Part I of the Act and rights in performances by Part 2.  The CPDA came into force on the 1 Aug 1989 and has been amended many times since then. The Intellectual Property Office has helpfully compiled an up to date version of Parts 1 and 2 of the Act together with other relevant legislation.

International Agreements

The UK is party to a number of international agreements that require foreign governments to protect the intellectual assets of British businesses and individuals in their territories and the British government to protect the intellectual assets of foreigners here.  The agreement that provides reciprocal protection of works or art and literature is the Berne Convention for the Protection of Literary and Artistic Works ("Berne").  The agreement that provides reciprocal protection for performances is the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations ("Rome"). Berne and Rome have been supplemented by a number of other international agreements of which the most important are the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. One of the reasons why Parliament enacted and has revised the CPDA was to enable the UK to comply with those conventions and treaties.

Copyright Works

The CDPA protects the following types of work from unauthorized copying, publishing, performance and other distribution in the UK:

• Original artistic, dramatic, literary and musical works
• Broadcasts, films and sound recordings, and
• Typographical arrangements of publications.

That covers such works as the story, score, the choreology, broadcasts and HDTV transmissions and some of the art work such as scenery and fabric designs.  One of the many things that the Court of Appeal decided in Massine v De Basil[1936 - 1945] MCC 233, one of the few copyright cases relating to ballet, was that there is no such thing as copyright in a ballet. There are instead a bundle of copyrights in the works that make up a ballet such as an outline of the plot, the music, notation, artwork for the scenery, costumes and other works. Secondary copyrights are created in any videos that are made during class and rehearsals as well as in any sound recordings that may be made. Yet more copyrights are made in the notes, photos, compilation, editing and typographical arrangement of the programmes. 

Rights in Performances

Performers including dancers and those who have contracted with a dancer or other performer to broadcast, film or tape a performance such as the BBC, a film studio or a record company have the right to object to the broadcasting, filming or taping of a performance regardless of whether the performance takes place in a theatre, TV studio or film set.

Creating a Copyright?
There is no system of copyright registration in the UK though there is in some other countries. Copyrights come into being the moment a work in which copyright can subsist is created by a British citizen or resident or a citizen or resident of any other state that confers confers protection on the works of British citizens and residents within its territories pursuant to the Berne Convention or some other agreement with the UK government. Most countries of the world are party to Berne and the few that are not have entered other multi or bilateral agreements with the UK.

Copyright can subsist in any of the works listed above provided that it is not copied wholly from another work. Essentially copyright rewards the labour, skill and taste that has been expended on a work. Thus, a poet may write a poem which creates a literary copyright; an artist a drawing that creates an artistic copyright; and an editor may choose the poem and the drawing and combine them with other poems and drawings in an anthology which creates yet another literary copyright in the compilation.

Creating a Right in a Performance
Consent is required for broadcasting, filming or taping of a performance from the moment the dancer or other performer walks on stage to the final curtain call so long as the performance takes place in the UK or by a national of a country that is party to the Rome Convention or some agreement with the UK.

Who owns Copyright?
Usually the author (that is to say the person who makes the work) is the first owner of the copyright subsisting in the work but there are a number of exceptions. If the author is employed to create the work under a contract of employment or apprenticeship the author's employer becomes the first owner unless the employer and employee have agreed otherwise. Merely commissioning a work, however, does not usually confer copyright on the commissioner unless the circumstances suggest that that is what the parties had intended as happened in Massine v de Basil.  When commissioning a score, choreography or other work it is important for the parties to think about who is to own the work and what rights (if any) each of the parties has or should have in its exploitation.

Who owns a Right in a Performance?
In the first instance it is up to the dancer or other performer to consent to the broadcasting, filming, taping or other exploitation of his or performance.  In practice the terms upon which such consent is given have been negotiated by Equity on behalf of its members. Such terms are incorporated into individual performers' contracts of employment. Broadcasters, film and recording studios that have negotiated exclusive contracts to record a performance can also object to broadcasting, filming and taping of performances.

How to make Money from Copyrights and Rights in Performances
Copyrights and rights to make, distribute and otherwise exploit copies of recordings may be assigned or licensed for money or moneysworth.   How much will be paid by way of a royalty, licence fee or other payment will depend on supply and demand. The work of a well known artist, choreographer or composer will generally command a greater payment than that of a lesser known one.  Some copyright owners assign their rights to organizations known as "collecting societies" which collect payments on behalf of all their members and distribute them after deducting their expenses as individual dividends. BECS (British Equity Collecting Society) collects royalties for licensing performers' rights on behalf of their members.

Moral Rights
In addition to the rights mentioned above which are generally referred to as "economic rights" performers and some copyright owners have rights to be identified as performer or author and the right to object to derogatory treatment of their works that are known as "moral rights".  These subsist quite independently of the economic rights and cannot be assigned.

Enforcement
Violation of an IPR is known as "infringement".

Large scale deliberate infringement of copyright (known as "piracy") and rights in performances ("bootlegging") are offences that can be punished by up to 10 years imprisonment and an unlimited fine. Local authority trading standards officers have a statutory duty to investigate and prosecute such offences.

IPR owners can also sue infringers in the civil courts for injunctions (orders of the court to refrain from or stop infringements on pain of fine or imprisonment for disobedience), damages (compensation for past infringements) or an account of profits (disgorging any profits that have been made from infringements), surrender of infringing copies and their costs (legal expenses for bringing the action). In England and Wales most claims for IPR infringement (including small claims) are brought in the Intellectual Property Enterprise Court ("IPEC") or the Intellectual Property list of the Chancery Division of the High Court of Justice.

Collecting societies also bring proceedings in the civil courts on behalf of their members.

Further Reading
The Intellectual Property Office has published a very useful guide entitled "Copyright, Essential Reading" which can be downloaded in pdf from its website. Equity also has a considerable volume of materials on performers' rights which is accessible to its members.

Should anyone require additional information he or she can call me during office hours on 020 7404 5252 or send me a message through my contact form, twitter, Facebook, G+, Linkedin or Xing.

Happy May bank holiday everybody.

Branding and Ballet - Licensing the Brand

In "Ballet as a Brand? How to bring More Money into Dance for Companies and Dancers" 13 March 2014 I argued that more could be done to raise funds and indeed dancers' incomes by harnessing the enormous goodwill enjoyed by companies, theatres and individual dancers. In "Protecting the Brand" 31 March 2014 I counselled companies, theatres and dancers to protect their goodwill by registering their names, logos or other signs as trade marks. In this article I discuss the legal instrument by which the goodwill is monetized. That is to say the licence.

Watch the Spelling
In the UK and most other English speaking countries the noun licence is spelt with a "c" and the very "to license" with an "s".  In the United States, however, both the noun and the verb are spelt with an "s". The distinction between the verb and the noun is a very convenient one but some people including, sadly, even a few lawyers find it confusing and get mixed up.

What is a Licence?
A licence is another word for permit or consent. A familiar example is a TV licence that allows us to watch television. Without such a licence it is unlawful to watch a live broadcast in the UK however it is transmitted. There are also licences that permit us to do something for which we would otherwise be sued like park a car on someone's land. The sort of licences that we are talking about are intellectual property ("IP") licences.

What is IP?
IP is the collective name for the bundle of rights that protect investment in intellectual assets. Intellectual assets are such things as books, goodwill, inventions, performances and software that have been made by creative or inventive people.  Examples of IP rights are patents for inventions, trade marks for the signs by which the public recognize a supplier or his or her products in the market place, copyright for literary and artistic works and rights in performances for the right to film, tape or broadcast an actor, dancer or musician's performance.

What is an IP Licence?
That is a licence to do an act such as sell a product or supply a service under a trade mark or film or broadcast a performance by a dancer that is restricted to the IP owner.  Without such a licence, such a person can be sued by the trade mark owner or dancer.  Licences can be oral or written and they can arise expressly or impliedly. However, most IP licences are in writing and drafted by specialist lawyers.

Types of Licence
Licences can be exclusive, non-exclusive or sole.

Exclusive licences are those in which an IP owner ("the licensor") transfers all his or her rights in the IP including the right to prevent others from exploiting the IP to the person to whom those rights are granted ("the licensee") with the result that the licensee can prevent anyone in the world including the licensor  from exercising those rights. Many agreements to make and sell goods bearing a company's name, logo or coat of arms in a specified location are exclusive licences.

Non-exclusive licences are those in which more than one licensee (and, of course, the licensor) can exercise the rights that are granted but only the licensor can prevent third parties from exercising the rights. Software is usually supplied to end-users under a non-exclusive licence known as a "EULA" (end user's licence agreement").

Sole licences are non-exclusive licences in which the licensor agrees to grant only one licence.

Licensing your IP
Before you enter negotiations for a licence it is a good idea to read the Intellectual Property Office ("IPO")'s booklet on Licensing IP in the IP Health Check series. The IPO has also published a Skeleton Licence or check list of the terms commonly found in licence agreements. The provisions to which you should give particular attention are as follows:

• What exactly are you licensing and how is the licence to be exercised? For instance, is this to be a non-exclusive licence to print you logo or image on t-shirts and sell those t-shirts in the UK. Do you want your licensee to be able to make other products or export them? If so, how will that affect your agreements with licensees elsewhere? Also, are those foreign licensees allowed to export their goods here in competition with you or your British licensee?
• Quality Control. You have put a lot of effort into building up a national and international reputation and you don't want it trashed or trivialized. Any goods bearing your name or logo must be made of good quality materials with high standards of workmanship and they must be packaged attractively. But how do you make sure that is done? And what are the consequences if it isn't?
• Defending and Enforcing the IP? Which party is responsible for the legal fees if a third party infringed the IP or challenges its validity. Legal fees can mount quickly in litigation, particularly in the UK.
• How are you to be paid? When? Where? In what currency? How can you be sure that the right amount is paid? Do you have the right to audit your licensee's accounts? What happens if he or she does not pay you on time?
• What happens if your licensee under-performs? Do you have the right to appoint another licensee or even terminate the licence?
• What happens if your licensee becomes insolvent? Do you really want to be dealing with a liquidator or the licensee's creditors?
• There are bound to be disputes and differences but how are they to be resolved and under which legal system?

Professional Advice

On all those matters you will need professional advice not just from lawyers but also accountants and maybe patent or trade mark attorneys. The Institute of Chartered Accountants of England and Wales has a searchable database of their member firms by geography and specialization. So, too, does the Law Society for solicitors, the Institute of Trade Mark Attorneys and the Chartered Institute of Patent Attorneys. You can now access the Bar direct and you can consult the Intellectual Property Bar Association for a barrister specializing in IP. The corresponding association for solicitors is the Intellectual Property Lawyers Association.

Further Information
As I said in my previous article I am making this information available to the ballet world pro bono as a thank you for all the pleasure dancers, companies, theatres and schools have given me throughout my life.  I will answer any questions that anyone has by phone or email. My number is 020 7404 5252 and you can contact me through my contact form, twitter, Linkedin, G+. Facebook or Xing.

Ballet as a Brand? How to bring More Money into Dance for Companies and Dancers

Degas, Class                                                           Source Wikipedia

On 20 Nov 2013 The New York Times published an article by Michael Cooper and Roslyn Sulcas entitled "Ballet Dancers as Brands". The opening sentence was as follows

"A wave of international ballet stars are increasingly leaping from company to company, creating their own brands and becoming more like world-traveling conductors and opera stars."

Alina Cojocaru was quoted as saying:

"Ballet careers are relatively short and require years of training that pose the risk of injury, yet the world’s top dancers earn far less money than their counterparts elsewhere in show business."

Less money? Well according to Cooper and Sulcas only three dancers at American Ballet Theatre earned more than US$190,000 and  the étoiles at the Paris Opera earn on average, around US$125,000 a year. Now bearing in mind how long it takes to become a principal and how few dancers actually reach the top that is not a lot of money. It may allow a reasonably comfortable standard of living for a few years while the dancer is at the peak of his or her career but it does not allow him or her to plan, save and invest for a comfortable retirement or other priorities like private education for his or her children.

What to do about it? Well I don't think dancers can expect very much more from  their companies. The arts in the United Kingdom at any rate rely on grants, ticket receipts and corporate and individual sponsorship for their income. Can that be increased? A bit perhaps but not by much.  There is a limit to what the public will pay whether as taxpayer or theatre goer. Especially in hard times.

So is there anything else that can be done? Well perhaps. As the Bailey's Nutcracker commercial showed last Christmas ballet can sell. Maybe advertising, merchandising and endorsement. A few companies are already making a little extra money from advertising. The Royal Opera House shop offers a wide range of merchandise bearing the Royal Ballet name and crest such as books, calendars, greeting cards, t-shirts and videos. Other companies sell t-shirts. A website called Balletgifts, which appears to be based in New Cross. markets various items of clothing and other merchandise for the Birmingham Royal Ballet, the Bolshoi and the Mariinsky. Many companies hire out rooms in their studios or their orchestras. Most also have schemes by which businesses and individuals can become friends or patrons of a company or sponsor individual productions or dancers.

What about individual dancers? A few superstars like Carlos Acosta and Darcey Bussell have websites through which they market branded merchandise. Acosta offers clothing and posters and advertises his book with links to Amazon and Waterstones. Bussell markets a range of children's dancewear, books and games and DVDs from her site. But not every principal of the Royal Ballet does that and a few do not even have websites or social media accounts. I think more could be done in that regard by other dancers because many ballet goers are loyal almost to the point of obsession referring to artists whom they hardly know and in most cases have never met or are ever likely to meet by their first names. Ballet tickets are not cheap yet some fans see the same work albeit with different casts in the same season. Moreover the audience for ballet and thus the fan base will expand massively with HDTV broadcasts to cinemas around the world.

If companies or dancers want to exploit such goodwill they have to protect and manage it in the way that sports stars and indeed other entertainers do. Company names and indeed the names of individual dancers are valuable assets and should be protected by trade mark registration. Last night I made a number of searches on the Intellectual Property Office databases and was surprised to find that not every major company in the United Kingdom let alone every dancer had registered their names and logos as trade marks. They really do need good advice on IP and licensing strategy and no doubt tax planning and pension advice as well.  If there is sufficient interest from dancers and their companies to discuss these issues I would be very happy to organize one and speak for free as my gift to those who have given me so much pleasure in the past.