Taekwondo demonstrations are impressive displays of athleticism and artistry.  Although the average person may think of a “demonstration” as a form of teaching or a presentation of basic skill sets, in martial arts, the terms “demo” and “demonstration” encompass a wide range of choreographed performances.  Some demos are competition events, where competitors are judged on their artistry, originality, technique, power, accuracy, and cohesiveness as a group while performing skills such as traditional forms and patterns (called “poomsae”), choreographed self-defense sequences, and board breaking.  In other settings, demos may be performances whose goal is to promote an aesthetically pleasing form of entertainment.[1]

            When putting together a demo performance, it is vital to take steps to ensure that the demonstration does not land the team in legal trouble.  While most teams are good at mitigating the risk of personal injury and the legal issues related thereto, they are less likely to consider the possible intellectual property ramifications of a demonstration.  There are two areas in demo where intellectual property issues may want to be considered: the choreography and the musical accompaniment.

“They’re Doin’ Choreography”[2]

In some cases, the choreography of a demo itself may be a work of copyrightable art.  The United States Copyright Act protects “original works of authorship, fixed in any tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”  Among the categories of works of authorship Congress chose to protect are “pantomimes and choreographic works.”[3]

            To date, there are no court cases addressing whether taekwondo demonstration is protectable under the Copyright Act.  To determine whether demonstration choreography could ever be considered protectable, it is important to start with how Congress viewed choreographic works under the Copyright Act.  A review of the Congressional comments to the Act shows that choreography must be more than “an arrangement of functional physical movements such as sports movements [or] exercises” in order to be protected.[4]  Instead, “[c]horeographic authorship is considered, for copyright purposes, to be the composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive whole.”[5] 

At first blush, a demo may appear to never be eligible for copyright protection, as it is an arrangement of sports movements.  Taekwondo is a sport and some practitioners choose to pursue taekwondo for the exercise component.  That alone, however, should not preclude taekwondo demos from ever being able to obtain copyright protection.  These same statements describing taekwondo could easily be made about various forms of dance, such as ballet.  Like taekwondo, ballet is a display of athletic ability and grace.  Dancers may elect to compete in dance competitions that resemble sporting events, while some practitioners take up ballet purely for its exercise benefits.  There is no question, however, that certain ballet choreography is protectable under copyright law.[6]

The question, then, becomes when a performance rises to the level of protectability.  It is generally accepted that ballet movements themselves – individually or in combination – are not copyrightable.[7]  Instead, to be protectable, the compilation of ballet movements must be “an integrated and coherent compositional whole.”  In other words, simple sequences of ballet movements performed across the floor are not protectable.  When those movements are integrated into a complete composition, such as Swan Lake, that complete, integrated composition becomes protectable.

            The same should apply to martial arts demonstration performances.  Basic martial arts movements, alone, should not possess sufficient originality to be copyrightable.[8]  For example, training exercises designed to teach develop muscle memory for sequences of defenses and attacks useful in hand to hand combat are likely outside the bounds of copyright.  A demo that creatively combines taekwondo movements into an integrated, coherent composition, however, should qualify for protection. 

Taekwondo demos can and do engage in the dramatic, performance-based storytelling one would find in a classical dance performance, albeit with some different physical movements.  One such example of taekwondo demonstration presenting an integrated and coherent compositional whole is The Dream Of The Bluebird, a historical performance that tells the story of the Japanese occupation of Korea.  Although a historical performance, The Dream Of The Blue Bird is also a taekwondo demo, and is performed by Woosuk University’s demo team.[9]  Another example of a work that may rise to the level of protectability is the Vegas production Panda!, which combines dance, acrobatics, and martial arts demonstrations to tell the story of a panda who trains in martial arts and journeys to rescue the love of his life.  In situations where martial arts demo provides an integrated and coherent composition, its choreography should be given equal footing as choreography for other art forms.

            Even if a demo performance meets the requirements of an original work of authorship, it does not become protectable unless it is fixed in tangible form, i.e., recorded in some manner.[10]  Typically, this is done by creating a video recording of the choreographic performance.[11]  There is no requirement that the recording be professional in quality.  Demonstration teams and/or their masters/instructors/coaches can easily record video with most smart phones.  So long as the recording is sufficient to allow a third party to perceive, reproduce, or otherwise communicate the performance, the recording will qualify as fixing the performance in tangible form.

            What does it mean if demo choreography can be copyrightable?  If demo may, in some instances, be copyrightable, it is important to consider what is and is not subject to copyright protection.  In the copyright realm, ideas are not copyrightable.  Ideas are free for anyone to use.  In contrast, the expression of ideas is subject to copyright protection.  Therefore, the question becomes what is the level of ideas and what is at the level of expression.

Individual movements and basic sequences are considered to be ideas.  Therefore, no one can claim exclusive rights in any given kicking, striking, or blocking technique.  Combinations of movements that are naturally performed together are also unprotectable ideas.  Similarly, a newly invented original movement or skill, while unique, would not be likely to rise to the level of copyright protection.

Two demos merely including the same elements, albeit in a different order, would be insufficient to find one infringes the other.  Realistically, there are a finite number of movements in martial arts.  Every demonstration will likely include round house kicks, jumping side kicks, and punches.  The original arrangement of those elements is considered expression and may, in some cases, rise to the level of protection.[12]  In other words, while having round house kicks, jumping side kicks, and punches is not protectable, a specific arrangement of those elements along with many others to make an integrated, cohesive work of art may be.

Given the requirement of a work of choreography be an integrated and cohesive whole, an infringing demo would need to capture a substantial amount of the original demo’s movements and perform them in a substantially similar order and fashion before infringement could occur.  It naturally follows, then, that a faithful recreation of demo routines developed by others carries a high risk of infringement.  Recreating a demo routine by another and changing parts of it may also risk a copyright claim if the new routine is substantially similar to the original.  Watching a demonstration and deciding that jumping snap kicks are impressive and should be included in an upcoming original demonstration, however, would not be sufficient to give rise to infringement.  Ultimately, while it may be useful to pull inspiration from existing choreography, teams should be careful not to copy that choreography.

“I Can Hear Music”[13]

            Because demos incorporate music, copyright considerations also arise with regard to musical recordings.  Musical recordings are protected under the Copyright Act.[14] Therefore, permission to use a recording should be obtained prior to including it in a demonstration.

Some artists choose to make their recordings free for anyone to use.  For teams looking for music that is not widely known or music that is cost efficient, searching for royalty-free recordings may be a useful avenue to pursue.

Normally, artists looking to provide their recordings royalty free utilize open source licenses.  These licenses allow anyone to use the work, so long as they abide by certain rules set forth in the license.  Examples of these rules may include limitations on how the music may be used (e.g., whether the music may be used in a commercial manner) or limitations on whether and how the music may be altered.  The most famous form of open source license is the Creative Commons license.[15] The Creative Commons organization provides a number of license templates to copyright owners who wish to provide their works to others in a royalty free environment.  The rights owners can use the various Creative Commons templates to easily select the scenarios under which their works may be used for free.

While Creative Commons is popular, open source licenses may come in all shapes and sizes.  If a demo team decides to utilize open source music, it should carefully read the rules set out in the license to ensure compliance with those rules.  Failure to comply with the rules in a license is considered use without permission (and copyright infringement).

The vast majority of musicians do not provide their compositions and recordings free of charge.  A demo team desiring to use a song that is not an open source recording should make sure it obtains the proper license.  If a team is unsure where it can obtain a license for a given song, a good starting point would be to check with the major licensing organizations to see if those organizations represent the owner of the rights in question.  For example, major licensing agents ASCAP and BMI maintain searchable catalogues of the songs and artists they represent.  It is also common for musical artists to include their contacts for licensing on their websites.  Typically, obtaining a license involves communicating with the licensing agent, determining the appropriate license, and paying the necessary fees.  Upon doing so, permission is granted and the team may use the song.

It is extremely important to get the proper license.  Not only is using a recording without permission considered copyright infringement, the music industry fiercely polices its rights.  There is a strong likelihood that utilizing music without the proper licenses will result in the licensing agent discovering the use and claiming copyright infringement.  Given the cost of pre-litigation legal work (e.g., resolving cease and desist issues) and federal copyright litigation, it is better financially to obtain a license, rather than “risk it” and use music without permission.

Conclusion

            In addition to considering safety and entertainment issues in designing a demonstration, demo teams should also give some thought to intellectual property.  In doing so, they can insulate themselves against possible legal action that detracts from their art and proceed with peace of mind.


[1] An example of demonstration featuring the world famous Korean Tigers may be found at https://www.youtube.com/watch?v=ENKh-1qUvJA

[2] From “White Christmas” by Irving Berlin.

[3] 17 U.S.C. § 102.

[4] 77 Fed. Reg. 37605-01 (2012).

[5] 77 Fed. Reg. 37605-01 (2012).

[6]Horgan v. MacMillan, Inc., 789 F.2d 157 (2d Cir. 1986).

[7] 77 Fed. Reg. 37605-01 (2012) (“[T]he selection, coordination or arrangement of dance steps does not transform a compilation of dance steps into a choreographic work.”). 

[8] Patry on Copyrights, § 3:96.

[9] Information on this performance art may from its American tour be found here – http://mommypoppins.com/event/dream-of-blue-bird-taekwondo-art-performance

[10] 17 U.S.C. § 102.

[11]See, e.g, Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n,805 F.2d 663, 675 (7th Cir. 1986).

[12] See above.

[13] Title of a song written by Jeff Berry, Ellie Greenwich, and Phil Spector and covered by The Beach Boys.

[14] 17 U.S.C. § 102.