Ep. 121: Caribbean Choreography, Dance Moves & the Law
In this episode Haitian American entertainment lawyer Merlyne Jean-Louis Esq. and Mikelah Rose of Style & Vibes discuss what U.S. law protects and doesn’t protect when it comes to Caribbean dance moves and choreography.
Merlyne Jean-Louis, Esq. is the founder of Jean-Louis Law, P.C., a New York-based law firm that focuses on business and entertainment law. She helps transform her creatives and entrepreneurs into CEOs.
Merlyne is also a dance law commentator. She has discussed copyright law as it relates to choreography on CBS, The Verge, Marketplace Tech and the legal podcast Poplaw. She also was mentioned in the book Choreographing Copyright: Race, Gender and Intellectual Property Rights in American Dance.
Merlyne is a graduate of Duke Law School and NYU and admitted to practice in New York.
For more information about her practice, visit www.jllaw.net. To contact Merlyne, you can email info@jllaw.net or call 347-946-0597.
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Transcript
Kerry-Ann: Hello, everyone. Welcome to another episode of Carry On Friends, the Caribbean American podcast. I’m your host, Kerry-Ann and today we are going to talk about something that you’ve seen a lot on social media. But you know, we haven’t really had a proper discussion. But before we get into the topic, I want to introduce my guests today, I have my Style and Vibes sistren sister from another mother, father, everybody Mikelah of Style and Vibes Mikelah Welcome back to the show.
Mikelah Rose: What’s up family? You know, it’s always good to be back on the Carry On Friends podcast with my family here. So thank you for having me again.
Kerry-Ann: Awesome. And then we have Merlyne Jean-Louis, and I’m going to have her tell a little bit about herself, Caribbean country she represents and all that good stuff. Welcome to the show. Merlyne.
Merlyne Jean-Louis: Kerry-Ann, thank you so much for having me. I really appreciate it.
Kerry-Ann: Awesome. So tell the people a little bit about you.
Merlyne Jean-Louis: So I am of Haitian descent, both my parents are from Haiti. I was born here raised in New York. I am a business and entertainment lawyer. I have my own law firm based out in New York. My target clients include content creators, like bloggers, podcasters influencers. I used to be a dancer myself, I did hip hop and African dance. So that’s a little bit about me. I’ve been featured on Bloomberg, Marketplace Tech, CBS. And that’s about it. Yeah.
Kerry-Ann: All right. So you gave a little bit about what we are going to get into. So the topic we’re getting into today is dancing or choreography and the law. And we met Merlyne back in June at Afros and Audio and, you know, I’m like, I finally know what I I’d like you to be on the podcast for so let’s get into how did you first from a personal perspective? How did you get from dancing to law or law to dancing? Tell us a little bit about that.
Merlyne Jean-Louis: Yeah, so I have been involved in the law since I was a kid. I interned at my town attorney’s office, I interned at a law firm. During college, after college, I worked as a paralegal for about three years at a big law firm. And so I always want to do what I want. I always knew that I want to go into the law, but just didn’t know what type of angle I want to go into. And so all of a while I was dancing. Since I was a teenager, I’ve been dancing. And when I worked at a big law firm, I met a black attorney who worked in IP intellectual property. And that’s when I discovered Oh, there’s sort of a creative side to the law. I’ve always heard about entertainment law, but I didn’t really understand what it was. And she sort of gave me an explanation as to what it was. And from that, I decided, Okay, I’m going to go to law school. And my dream job is to be general counsel for Alvin Ailey, the famous dance company. So that’s my, I guess, the connection between dance and law for me.
Kerry-Ann: All right, so tell us a little bit about the practice, or a lot of the work that you’ve been doing around dance and law. Mikelah and I, we’ve talked a lot about what we’ve read in the newspaper about Fortnite, and, you know, dances of the African, African American culture that is part of the game and how it’s monetized. So tell, you know, for anyone who’s like dance and the law, what is that about? Just give us a little detail about what that is.
Merlyne Jean-Louis: Yeah. So I can I talk about copyright law first?
Kerry-Ann [3:33]: Absolutely.
Merlyne Jean-Louis: Okay. So copyright law is the kind of law that protects, protects creative works. For example, music, TV, film, and also choreography. Now, choreography has been protected as of 1978. But unfortunately, there hasn’t been a lot of case law related to choreography and copyright. So many lawyers and self and courts don’t really know how to navigate it. Compared to music, there are lots of cases because why? Because music is very valuable in the eyes, in the industry to music industry. So there hasn’t been much case law. But as of recently, one of the biggest cases that has occurred recently was with fortnite. Should I explain what Fortnite is?
Kerry-Ann: No, I mean, generally it’s the game all of our kids play. They do some crazy dances. And that’s it.
Merlyne Jean-Louis: I actually, I didn’t know what it was until I got approached by a Marketplace Tech about their article about, yeah, I don’t know, I don’t have kids have god sons but they don’t play Fortnite. I didn’t know what it was. Okay, I’m like, Okay, wow, this is a big issue. Because what’s happening in this game is fortnite is using dance moves from hip hop culture, different cultures, Russian culture, and renaming them and making money off with it, because that’s the only way it made money because the play the game was free. And so when I discovered this, I’m like, oh, that’s not cool. But they’re really we don’t know what the remedy is to that because they’re hasn’t been case law to discuss what happens when a dance move is taken by someone else and infringed upon? We don’t know what the answer to that is. I mean, like some people have said, okay, according to the guidance provided by the Copyright Office, which is the body of the governmental body that governs copyright law, that no, a dance move is like a word. You can’t copyright a word. But I think that argument is not necessarily you can’t make that argument, unless we actually have case law unless it’s ash, this decision is in court. I don’t think someone can make that resolution.
Kerry-Ann: So all right, so for and Mikelah, don’t be afraid to jump in here. But let me just level set a little bit. So in this instance, it’s very clear because it’s clear what the challenge could be because fortnite is a product of this gaming company. And in this game, where it’s really a battle, and then you know, to do certain dance moves, you have to pay the game so you could get that dance move. Right, but they’re not calling, you know, Alfonso Romero’s or Rubeiro’s, Carlton, the Carlton, they call it something else. And so they make money up from it that way, right? Now, if I’m listening to this, and I’m like, wait a minute. So if I am a choreographer in a music video, and these are popular dances, and I incorporate this into a routine, for Beyoncé’s or somebody’s music video, am I infringing on that creators, right?
Merlyne Jean-Louis: Yeah, so I guess I got to go a little bit back and what it actually how one actually gets copyright. So one gets copyright protection, so long as something is fixed. So I’m so sorry, if I’m able to backtrack a little bit. Okay. So one, one gains copyright protection, if they have the following if something is a work of authorship. That’s something that’s works that are listed in the Copyright Act. That includes lyrics to songs, film, things of that sort. So as long as it’s a listed work authorship that is it a protection, choreography was actually listed as something that can be protected. But what is choreography? That’s not something that’s actually defined in the copyright law. And so what happens when that happens, that case law is opposed to sort of fill in the blank as to what exactly, choreography is, and that has not been answered. Another requirement is that it has to be original. That means the person had to have created that work themselves. So if you copy someone else, that’s not original, right? So it doesn’t get protection and has to be also fixed in a tangible medium. Now, what does that mean? I’m dancing right now I’m moving my hands. I’m doing something right now you can’t see it. I’m not recording, it is not it’s gone. As soon as I move, my hand is gone. Let’s say I sing some lyrics. As soon as I say it, say them and think them, they’re gone. Unless, unless I actually have something to record myself. Like, if I have a phone, and I’m recording my dance moves, that phone is tangible. And so that’s what that’s why it’s fixed in a tangible medium. If I write down lyrics on piece of paper, the paper is tangible. So that’s why it’s fixed and tangible medium. So again, it has to be a work of authorship, Original fixed and tangible medium. What happens to these what the problem is, when it comes to these dance moves is number two. We don’t know if it’s worth we don’t know if dance steps are considered to be worth work of authorship. That’s the first hurdle for a Alfonso Ribeiro. There’s another hurdle actually to because he said in the past, I think he was inspired by someone else to create, I think was Courtney Cox, Courtney, Courtney Cox the one from friends.
Kerry-Ann: Yes, because she did that move She did was actually from the video of Bruce Springsteen and she was doing that dance. Yeah.
Merlyne Jean-Louis: So he sort of admitted it like, so is it original for him too I don’t know. But again, the first still the major hurdle for it for him is to determine whether it’s a work of authorship dance step.
Kerry-Ann: So this is really interesting. Mikelah, anything you want to jump in so far? Because I’m gonna make sure that myself and the audience really understands the basic concept before we jump in. So
Mikelah Rose: yeah, so I kind of wanted to hear the legal perspective first, before coming in and asking the questions.
Kerry-Ann: Okay, great. So let me just tie this up now. So when we think of I said, choreography, choreography, but choreography in and of itself, is multiple dance moves put together in a routine. So I just want to make this distinction is a dance move vs. is that the copyright law? Does it protect a dance move versus an entire choreography?
Merlyne Jean-Louis: And I can’t answer that question.
Kerry-Ann: Cuz it’s still not still not defined. Yes. Case law, that is exactly just what I need to get to. So there’s a dance move. And it’s like the running man, right? That’s a dance move. But then if we put the running man into a routine, that’s part of the entire Beyoncé, you know, whatever video, that’s a completely different issue that case law has yet to address has and so which is why we have all these cases with fortnight, and everyone’s trying to figure out what to do. All right. So that’s where we are. We’re clear on that. Yeah, great. Yeah. Yeah, I think this is important to understand, because a lot of and Mikelah we talk about this a lot. A lot of our cultural exports Gets
Kerry-Ann: Miss… Wait, wait, wait, because no one understands the legal concept of how things are. And you made it clear, it’s not that there’s a wrong or right, there’s no case law to define it. And case law is important for anyone not listening that the law could create what the permission is, but if for the law cannot possibly foresee every single scenario that will come in front of it. So based on each scenario, the case law has to define it. So this scenario, the initial creators of that law could not have foreseen this. So which is why we’re going through this process so that that’s exactly where we are.
Merlyne Jean-Louis: That’s it.
Kerry-Ann: All right. Great. I’m using my little paralegal skills too. So based on this, right, Mikelah, so, the reason why we wanted to have these conversation is, you know, while Caribbean dance moves based, and there’s this a disclaimer here, Merlyne, she is licensed to practice in the state of New York, and she is not giving anything she says on here, it should not be deemed as legal advice in any way, shape, or form, we’re having a discussion, and anything that she speaks on here, definitely you cannot apply to the Caribbean. So if you need advice, find someone in your local state, or region, we’re just having a discussion, I probably should have said that at the top, but I’m saying it now. So, you know, for creators of dance moves here within the culture. You know, a lot of times we see that things the same way Fortnite is taking, you know, these different dances and putting into a game our dance moves may not be monetized in a game that is very visible. And there’s a tangible, what’s the word I’m looking for? Possibly a case because I feel that maybe if fortnite didn’t steal it, we would still probably be in this gray area of, you know, really, is this something that’s protected or not? So, in the instance of Caribbean, dancers and choreographers here in New York State, what should they be aware of when it comes to their original work and authorship?
Mikelah Rose: Can I interject?
Kerry-Ann: go ahead? Go ahead. Go ahead.
Mikelah Rose: So I think the biggest question here, and it’s very specific to Jamaica, and the recent rise of African dance is that actually have names associated with those dances. So that’s nothing new to the culture, we’ve always had them, there have been originators, who create it, and they create the dance specifically, you’ll have an artist make a song around those dance and credit, that that dancer in whatever form or fashion, whether it be a fee, whether it be I’m gonna take you on tour, whether it be you can be my official choreographer, we’ve seen how that has transpired. Specifically, when it comes to dancehall and when it when it comes to African dances, specifically, and some of those dances that are particularly specific to Africa, I think some of those dances are very, are part of like cultural dances. So that that’s a whole different ballgame in itself. But I think what we’re really being mindful of is the idea of, if it’s been one associated with a person, two credited to that person in a public space, like video, social media. And I think the biggest, I think a lot of people around the globe are watching how this fortnite case plays out, officially, because it will determine how other countries, particularly the ones that I’m speaking about, are going can attempt to get credit, because really, and truly, it’s all about one getting credit and two getting paid. So I think it’s understood that dancers don’t get credit for making up dance moves. The reason why it came into play was because, yes, you can use the dance moves, make sure you credit me, but fortnite specifically made direct dollars from those dance moves, and they completely took the moves and renamed it. So it wasn’t necessary. And they might claim they weren’t aware, because there’s a team that kind of picks the dances. And it’s going to really force them to think about those dance moves specifically in a very particular way, depending on how this case plays out what I think. And even now, I’ve seen videos of choreographers who aren’t in Jamaica, but have taken Jamaican dances, taught it in their own video, and put the name of that dance and who it was created by in the video. So if you upload that video to YouTube, you’re making money or you can potentially make money off of that video, because you’re the one who uploaded if you don’t own the rights, what so it become it’s a I totally agree it’s a gray area. And a lot of people are definitely going to be watching those… But I think those are the things that people are really thinking about is one, how can I be properly credited two how can I be paid for? Or can I be paid? Because that is an even you know, it can be seen, dances can be like that can be seen as promotional material for your ability to teach choreography. And the court can rule that too.
Merlyne Jean-Louis: Can I address that? Oh, sorry Mikelah I didn’t mean to interrupt you.
Mikelah Rose: Oh, no problem. And that’s kind of like my final thought; I think what people are really looking for is credit and compensation.
Merlyne Jean-Louis: And so to answer that question, so there’s something called moral rights. That’s something related to attribution, like you said, like, Hey, I don’t necessarily want money I just want you to know, I just want people to know that I created this. That’s something called moral rights. In the United States, that is not really recognized for most of the IP intellectual property that exists. I think there’s an exception when it comes to Visual Arts. But otherwise, that type of moral arts, right, is not really enforced in the United States on a federal level, on a federal level. When it comes to compensation, the tool for that is copyright law. Copyright, it basically is economic, right that you get…
Kerry-Ann: No, no, no, no. See, so I’m taking notes. So if I’m quiet, that’s exactly what it is. But again, this is why we wanted to have the conversation because many of times we’ll be in a public space and so you should sue for that are you should do this. Yeah, but can we really, you know, so you’re saying the moral rights is very interesting, right? The moral rights is the credit the proper credit Mikelah referred to and you’re saying in the US that’s not enforced
Merlyne Jean-Louis: They don’t care about that, the courts did not care about that. Unfortunately, I think in the dance world, like being a former dancer, like attribution, that’s all we care about, right? We don’t care a lot of people don’t really care about the money like yo, Just let me just say that I create this is give a shout out give a hashtag that’s all we care about. I totally get it, I actually wrote about the 2 million that’s 1 million. The le twins I don’t know if you happen to know about this happened years ago. Two men basically did their exact routine to qualify for to compete on this show, so you think you can dance. And they made it on to the next step they made on to the next level and then at the next level, the producers said hey, we see that we know that this is typically le twins and they’re like fine the twins themselves actually went to those people who infringe upon their dance because that this difference though, is I think a difference between a complete choreography the complete choreography, like it’s three minutes, it’s videotape, there’s no question. Its original, that’s protected. That’s not there’s no issue with that when it comes to that be protected by copyright law. No question whatsoever. The issue we have is that particular dance move that one to two one step that we don’t know? But if it’s a complete choreography, absolutely, that is no question whatsoever.
Kerry-Ann: Let me let me just clarify quickly. Yes. So the entire choreography of Beyoncé, you know, let’s use a popular one put the ring on it if you have that whole dance routine that entire routine in that video is protected.
Merlyne Jean-Louis: Yes, it is. But yeah, that’s funny too because a Beyoncé that choreography it was, Uh, it was controversial but like I was a used inspiration for that quote for another like a 1960s show or something like that. As well as countdown again. I’m a huge Beyoncé fan. But like for countdown she basically use the choreography of was it was she from Brussels, Belgium, Belgium choreographer for like, she used to play some someone’s routine. And using her videos, didn’t give her credit, didn’t pay her. You know? So like, to me, that’s not cool.
Kerry-Ann: Mm hmm. So, so you, you, enlightening us has us re… I don’t know about you Mikelah. But now we’re reframing. The Are you also reframing this whole understanding of the dance and dance law, because then if, if you’re in the if you are a Caribbean, American choreographer, coming up with a dance move is one thing, but creating a whole routine that you capture in a video, or something because it has to be in a tangible format. So, you know, it has to be something that is recorded. So if I do this dance move, so Mikelah Merlyne and I are busting a dance move in the studio. No one else is seeing it. So no one knew that we created this routine, even if we saw someone else do a video saying, Hey, we just did that. Or let’s say someone was peeking through the window, saw us dancing and then copied it.
Merlyne Jean-Louis: Yeah, so that’s going to be going now to the copyright infringement. That’s a whole nother ballgame. Copyright protection, right, the best thing for you to do protect yourself is to register the copyright. You want to take a video, whatever your tangible form is, you want to send that to the copyright office within three months of making the work public, because you get extra rights when it comes to that if you ever Sue. And recently, this past year, the Supreme Court decided that you cannot sue for copyright infringement unless you have a registration in hand. Now I have a whole bunch of other issues with that, that I think, violate the constitution. But I won’t get into that. Let’s say that’s the case, though. But that’s the reason the fortnite cases had been on pause. I don’t know if you know, but both of the cases regarding the Milly Rock as well as Alfonso Ribeiro had been put on pause because both of them were not able to get registration for the, for the for the steps,
Mikelah Rose: And even thinking about that. So I’m more or less, yes, it’s reframing the mindset. But it’s also so like, these are the things that you need to be thinking about. Yes, yes. On the street corner now. But what is your vision for your career? If it’s long term, how are you planning to, to elevate and create longevity? So beyond the street corner dance, and you know, you know, doing it for promotional purposes, are you creating a signature choreography piece that you can travel and, and showcase and teach and do like, I think, for so long, we have been so short sighted in creating excitement, and momentarily, getting hyped up in the trend of creating something that becomes a wave, and then on to the next, right, so it happens so quickly, that you can’t let your you’re almost operating from a state of always being behind, versus thinking ahead and having this vision of what you want to do. So in the you talk about like Alvin Ailey, there are Signature moves that no other dance school you cannot perform, without their permit the school’s permission to actually perform it, you know what I mean? Like, is there you know, it’s just changing, I think the conversation for dancers to be aware of not just, you know, the now but thinking about the future. And
Merlyne Jean-Louis: it’s so hard to do that right, when your career person you use a lot of your energy to create your art. And so about the business aspect of that this is a business, right? If you you’re doing something for money, or for like for living, you’re making, it’s your profession, it’s a business as well. And so to get to that mindset can be very difficult. But I think that’s where knowledge comes into play, right? Yes. It’s like, I really appreciate you having this podcast. So I can, like help spread knowledge, because I don’t know about this stuff until I went to law school. I had no clue. You know, so just having that thought, these platforms are instrumental to people changing their minds, and being more aware about their rights.
Kerry-Ann: You know, you said it perfectly, because I think we the one thing we could say is that we need more information to make more informed decisions. And a lot of times, you know, we look at you know, oh my god, Merlyne’s a lawyer, cost prohibitive without even hearing anything that’s happening, but, you know, we have a saying in the Caribbean, you know, penny wise, pound foolish, and don’t get me wrong, I understand what it’s like to be a, you know, an entrepreneur, and you have to make decisions about where you’re going to spend your money. But then, like Mikelah said, you know, you down the road, Afonso Romero and the guy, or Ribeiro, I keep messing up his last name, the guy who did the Milly Rock, they weren’t thinking of this, because that wasn’t something that was in their purview to think that’s why you have business managers or lawyers to help you think through the long term consequences of or of not doing something. And I think we this discussion is helping us because we we’re like, a few minutes into this recording And Mikelah and I were very sure what we wanted to talk to you about now It’s a whole different conversation that we’re about to have, because of what you said at the onset, like wait a minute. So let’s use Bogle and we know that this was created by someone who lived in Jamaica and you’re right, your expertise doesn’t cover that. But let’s look at Bogle; he created a whole dance move that everyone knows to do the Bogle, right. But if he had done a whole routine, because there, Buju created a tangible output by giving him the moral rights, he gave him credit that Bogle, he’s named Bogle. So he created this dance, Bogle. And there’s this whole song. And if you did an entire routine to that one song that people would now use, he would have more rights for compensation, as opposed as opposed to just creating that one dance.
Merlyne Jean-Louis: Right? And it’s tough though, right? Because like, you have a copyright law to protect you in terms of economics, like getting money for your for your creative works, but isn’t always a good idea to go after someone for copyright infringement. That may not always be the ideal that like, the Milly rock, like everyone knows 2 Milly now because of the copyright fortnite issue. Like he may have opportunities, more concerts, who knows but at the same time you know, it’s still not fair for someone to make money off of your creative work. Yeah,
Kerry-Ann: all right, so let’s transition a little bit
Kerry-Ann: Merlyne, so how can dancers protect themselves? What can we what can they do now to be more aware of their copyrights? And what should they be now mindful of?
Merlyne Jean-Louis: Yes, so you should record all your routines, as soon as you create them as I’ve seen a lot of dance studios. As soon as choreographers create the routine, they have someone videotape them, that should be done. And then afterwards, you should register that routine with the copyright office. As I said before, when you do that, within three months of making that work public, you get additional rights when it comes to copyright infringement lawsuits. There, if you were to sue someone for copyright infringement and succeed can get something called statutory damages. And as this year, the Supreme Court does not allow you to sue for copyright infringement unless you have registration. And so you should do that as soon as possible
Kerry-Ann: And in in terms of the cost factor I know, we’re not going to discuss costs. But what are some tips or strategies that, you know, dancers, choreographers? How can they think of finding a lawyer and working out something with the lawyer because, you know, lawyers, it’s costly. And everyone thinks of the cost and decides whether to do or not do something based on a cost?
Merlyne Jean-Louis: Mm hmm. I guess you have to assess the cost of not doing it. What can happen, right? That’s an opportunity costs and stuff we think about as well. But there are many lawyers include myself who do things at flat rates. We there are lots of there’s lots of information out there. I myself am a big proponent of education. That’s why I have a blog that talks about copyright law talks about trademark laws, because I think that’s important as well. There are lots of resources out there.
Kerry-Ann: Okay. Okay. And as we wrap up any final word or decision, or any final thoughts on, you know, culturally, or to any dancers, choreographers as to the importance of copywriting, and being aware of their rights?
Merlyne Jean-Louis: Yeah, I just think it’s super important for you to know about copyright law, because it affects a lot of what you do dance is becoming a lot more popular now a lot more profitable. I think the dancers now raising their rights. And when that happens, there’s going to be revolution, I think it’s coming soon. So you’re going to be on the, I guess, positive side of the positive side, on the right side of that revolution. I think that I really, I myself being a former dancer, totally respect the dance world. And I just want y’all to just do continue to create your art. Just be aware about the, be aware of the business issues that come along to having a dance business as well.
Kerry-Ann: Yeah, yeah. Think of your creative. And if you’re not good with the creative, find someone that could add the…
Merlyne Jean-Louis: exactly. I like to make an analogy, like, want everyone who’s there like a dancer or a creative person to be as creative as Beyoncé and Jay-Z. Right, You cannot deny their creative genius, but they’re also about the business and making sure they cross those T’s and dot those I’s. So I just want everyone to just sort of get to that level.
Kerry-Ann: Mikelah
Mikelah Rose: Yeah, I think a lot of what Merlyne said is very important to even understand. And even if you don’t know where you’re going, having a baseline and a foundation of understanding what you’re doing and how you’re doing it and who you’re doing it for, I think that is really important. And just I would encourage, you know, people to especially creatives and dancers to ensure, think about your long-term vision, even if you’re not really there yet. A lot of… And if you’re not there yet, maybe ask someone else, what would it do you see me doing in the long term? Well, you know what I mean? Where do you think I can go with this? And that can kind of lead you to be having the thought in the back of your mind, where you’re going to go with your career. And even if you don’t act upon it, at least understand your basic rights, and what could happen and your own potential. I think that that’s important.
Merlyne Jean-Louis: Excellent.
Kerry-Ann: Well, thank you ladies for you know, having this discussion. It’s a again, you know, Merlyne, we thought it was going to go one way it went another way, but it was it was good to get this information because now we’re coming, we now know to address this conversation much differently. And thank you for educating us and wait, wait, wait one more thing before we leave. Merlyne, could you tell everyone where to find you?
Merlyne Jean-Louis: Yes, you can find me on Instagram. I’m wizard lawyer or Jean-Louis law. My name is Merlyne Jean-Louis you can Google me and you’ll find me because I have a very unique name.
Kerry-Ann: All right. Awesome. And Mikelah, where can everyone find you
Mikelah Rose: At styleandvibes you know it to find me style and vibes on Instagram, Twitter and just visit the website at styleandvibes.com.
Kerry-Ann: All right everybody, until next time, walk good.
