Kineo | Pınar Sönmez

DANCE, PERFORMANCE ART AND LAW

Pınar Sönmez

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In 2018, in a statement I gave to Istanbul Art News regarding the resale of performance artworks exhibited at the Mamut Art Project, I emphasized that performance art encompasses different rights from the perspective of Intellectual Property and Art Law, and that it is a subject that must be evaluated from all aspects.

Subsequently, the legality of dance, performance, and choreography was addressed multiple times in a collaborative manner during the Intellectual Property and Art Law courses I conducted at Yeditepe University (Art and Culture Management) and Mimar Sinan University. As a lawyer who has practiced ballet and personally experienced the meaning of self-expression through dance, engaging with the legal aspects of dance is certainly a beautiful, truthful, and effective key. On the path toward performance art, it is beneficial to first explain the legal realities within the dance-law relationship.

PROTECTION OF WORKS AND DANCE, CHOREOGRAPHY, PERFORMANCE ART

In Continental European Law, in its source the German Law, and in Turkish Law, intellectual property rights are positioned and protected based on the “work” and the “author of the work.” Within the scope of Law No. 5846 on Intellectual and Artistic Works (FSEK), for protection to apply, the creative product in question must qualify as a work. According to Article 1/b of the FSEK, a work is “any intellectual and artistic creation in the fields of science and literature, music, fine arts, or cinema, bearing the originality of its author.” This means that a “work” to be legally protected under the FSEK must belong to one of the types of works explicitly listed in the law and must reflect the originality of its author. Accordingly, the rights to be protected—the author’s economic and moral rights—are explicitly enumerated in the law. Economic rights define the author’s ability to economically benefit from the work and include the rights of reproduction, dissemination, representation, public transmission (publication), and participation and follow-up. Moral rights, on the other hand, encompass the right to present the work publicly, the right to have the author’s name indicated, the right to access the original work, and the right to prevent modifications to the work.

Artistic and creative activity is not only individual but, as seen in dance and performance, also a form of public expression. Therefore, from an intellectual property perspective, dance and performance must be considered along with all legal rights. Moreover, according to Article 27 of the Constitution regarding “Freedom of Science and Art,” “Everyone has the right to freely learn, teach, disseminate, and conduct research in science and art.” In order to advance the impact of public art in building the future, it is essential that the Constitution and the Law on Intellectual and Artistic Works be interpreted and applied in the light of citizens’ rights and the Law of Freedoms.

Additionally, according to Article 75 of the Constitution, titled “Protection of Art and Artists,” “The State protects artistic activities and artists. It takes the necessary measures for the protection, evaluation, support, and dissemination of art.” The realization of this provision is intrinsically linked to societal conditions and a worldview in which freedom of expression is upheld, censorship is avoided, self-censorship is not induced, and creative values are clearly embraced.

But does the law mention “dance” or “performance art”?
In the FSEK, the term “raks” is used for dance, and “choreography” is explicitly included. Specifically:

B) Types of intellectual and artistic works:
I – Scientific and literary works:
Article 2 – Scientific and literary works are as follows:

1. (Amended: 7/6/1995 – 4110/1) Works expressed in any form through language and writing, computer programs expressed in any form, and, provided they result in a program, their preparatory designs,
2. (Amended: 1/11/1983 – 2936/1) All types of raks, written choreographic works, pantomimes, and similar wordless stage works,
3. (Amended: 7/6/1995 – 4110/1) All technical and scientific works lacking artistic value, photographs of any type, all kinds of maps, plans, projects, sketches, drawings, models related to geography and topography, all architectural and urban design works, architectural models, industrial, environmental, and stage design projects.
   (Added: 7/6/1995 – 4110/1) Ideas and principles underlying a computer program, including its interface, shall not be considered a work.

Just as there is a difference between a trademark image under Trademark Law and everyday references to brands, even if we perceive and interpret dance as a fine art, our legislation clearly classifies and protects dance and choreography under scientific and literary works, not fine arts.

According to Article 2 of the FSEK, scientific and literary works are fundamentally classified under three paragraphs:

1. Works expressed through language and writing,
2. Wordless stage works,
3. Works without artistic value.

In Article 2/2 of the FSEK, dance, choreography, pantomime, and similar wordless stage works are presented as an inclusive concept, providing a general framework for performance-based works, even if not explicitly mentioned. Dance and choreography, in their nature as wordless stage works, are performances expressed through body language and movement on stage.

For dance to be protected as a work under the FSEK, the set of dance movements—that is, all physical figures—must either be documented in writing or, if not written, structured in a repeatable sequence. The written or otherwise reproducible nature of dance is essential for legal protection. A work subject to intellectual property protection is created not merely through casual execution, but primarily through the production of a structured, systematic, and repeatable set of movements.

At this point, I wish to highlight how closely Pina Bausch’s descriptions and approach align with legal definitions: Pina Bausch, who transcended the definition of choreography as “connected movements,” preferred to call herself a “dance-theatre author” rather than a choreographer. Dance is a theatrical tool. In her work, she prioritizes emotions and human relationships over technique. Her fusion of theatre and dance, unrestricted imagination, and technical mastery animates a wide spectrum of emotions. Her visuals contain texts, and “repetition” is her favorite emphasis. (https://www.mimesis-dergi.org/2021/07/pina-bausch-dans-et-dans-et-yoksa-yok-olup-gidecegiz/)

So, what must choreography protected under the FSEK include?
It is clear:

1. Written expression of dance steps,
2. Inclusion of the general outline of the program in a dance performance,
3. In performances with dance elements, such as ballet or musicals, a systematic and repeatable arrangement of dance steps and movements forming a coherent whole. Given these criteria, choreography clearly qualifies as a work under the FSEK.

PERFORMANCE ART AND LAW

Although performance art is not exhaustively defined in law, its content encompasses dance, scripts, direction, and performing artists. According to the “Principle of Creation Reality,” a work is created the moment it is produced. Article 1 of the FSEK states that a work is protected by the law from the moment it is created, without the need for registration or form. This article clarifies that intellectual property rights arise at the moment of creation, not at registration. Therefore, registration is not required for rights. For evidentiary purposes, however, it is recommended that authors send records of ownership, written arrangements, and video documentation to themselves or a trusted party via email or mail, and archive them with a timestamp.

Furthermore, for the transfer of usage rights, reference should be made to Article 48 of the FSEK, titled “Freedom of Contract and Written Form”: “The transfer of economic rights or permission to use these rights shall not be valid unless made in writing.”

●&nbsp,&nbsp,&nbsp,&nbsp,&nbsp,General and vague phrases such as “all rights have been transferred” are invalid in contracts.

●&nbsp,&nbsp,&nbsp,&nbsp,&nbsp,Which economic rights (reproduction, dissemination, performance, transmission by sound, image, etc.) are transferred must be explicitly stated, item by item.

Thus, not only the transfer of rights but also the clarity of the contract’s subject must be ensured, with a clear, balanced, and explicit agreement. I emphasize this point: in law, expertise in a niche area is as important as comprehensive command and responsibility over procedures, sources, and processes.

Direct and explicit protection of choreography under the FSEK became possible with the 1983 amendment. While intellectual property is governed by territorial principles, concepts must be continually re-examined, defined, and described in light of global changes, alongside existing law, the law as it should be must be articulated.

According to the relevant articles of Law No. 5846, the author’s economic rights include the rights of reproduction and dissemination. If the author—i.e., the performing artist—has legally transferred these economic rights, they pass to the transferee. Therefore, if a work is to be re-staged or performed by others, the nature and scope of transferred rights, as well as compliance with the validity requirements of the transfer agreement, are crucial.

For re-performance, reproduction, or dissemination, written permission should be obtained from the transferee if rights have been assigned, or from the artist if rights remain with them, with copyright fees included where necessary. Legal cases must be assessed individually, as specific circumstances, contexts, and outcomes vary. Given the complex legal and technical considerations in agreements between performing artists and rights holders, and whether performances are staged by the same or different artists, expert legal consultation is strongly recommended.

Considering the current level of interaction and economic value associated with dance and performances, detailed examinations, revisions, and negotiations are essential. Laws should be regulated in favor of works and authors, and definitions—from digital content to dance, from performance art to performers—must be clarified. Importantly, this requires diligence, understanding, and consensus among decision-makers and enforcers.

IDENTITY OF THE PERFORMER

Dancers, ballerinas, and performing artists are protected as “performing artists” under Article 80 of Law No. 5846. Referring to Prof. Dr. Şafak Erel: “A performing artist is a person who interprets and represents a work not belonging to them, giving it spirit and meaning. If the author performs and represents their own creation—for example, a composer playing their own piece—they are already protected as the author, and additional protection as a performing artist is not required.”

Regarding performance and representation, dancers and performing artists are protected under the identity of either the author or the performing artist, depending on whether the choreography or work belongs to them. Originality is key here. The protection of a performing artist applies only if it constitutes an original intellectual contribution. Indeed, Article 80/1 of the FSEK refers to “performing artists who execute and interpret intellectual and artistic works in an original manner.” The rights of performing artists are primarily protected economically, while moral rights are limited to the “Right to Attribution.”

The material and moral rights over a performance, particularly in cases of unauthorized recording, reproduction, or public transmission, are protected. Additionally, even if the performing artist is different from the author, their interpretation contributes originality, making them not just an interpreter but also a co-contributor to the work. In body-based and spontaneous forms of production like performance art, these rights become vital for the visibility and recognition of the artist’s labor.

INTERDISCIPLINARITY, CREATIVITY, AND FAIRNESS

The main issue here is the proper understanding of interdisciplinary movements and the legal approach to production methods. It is valuable to address positive transformations from an ethical perspective. In a recent precedent, the Court of Appeals highlighted the binding nature of expert reports and the judge’s authority to assess technical matters based on their expertise, rather than relying solely on experts’ opinions (Court of Appeals, 11th Civil Chamber, 2023/3573 K.). Yes, precedents set by the Court of Appeals can change the practical application of the law based on evidence, well-reasoned judgments, and principles of fairness. This demonstrates that dialogue between art and law can be transformative.

Therefore, it is essential to thoroughly examine what is known, determine the truth, and insist on a continuous process of real solutions, this approach yields valuable and record-worthy outcomes. This reminds me of a Canadian mentor, lawyer Elise Orenstein, who said: “In the ’70s, when I was in law school, I wrote an article on choreography and copyright, and that article formed the basis of my presentation to a standing parliamentary committee aiming to change the copyright law that year.” A legal system based on systematic reasoning and assumptions must rest on the principle of fairness and uphold justice, expressing, asserting, and defending certain truths.

For these reasons, using the Continental European Law framework derived from Roman Law, I emphasize throughout this article the importance of highlighting economic and moral rights in both de lege lata (law as it exists) and de lege ferenda (law as it should be) contexts.

Adorno’s statement is especially relevant here: “The most individual is the most general.” In this sense, protecting the work or performance of a dancer, choreographer, or performing artist, and ensuring justice, represents the manifestation of a universal sense of justice. Therefore, in practice, understanding rights in detail and acting with care is crucial. Through well-structured contracts, written permissions, absolute and verifiable agreements, consistency, and diligence, the production of art in our time—from each work to each dance step and every creative intention—becomes a contribution to civilization guided by principles of justice.

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References

1. Sönmez, P. (2019). Love, Creativity, and Law. Alfa Publishing.
2. Erel, Ş. M. (1998). Turkish Intellectual Property and Art Law. İmaj Publishing.
3. Tekinalp, Ü. (2019). Intellectual Property Law. Turhan Bookstore.
4. Kline, D. (2021). Introduction to Intellectual Property. OpenStax.
5. Bainbridge, D. I. (2018). Intellectual Property (10th ed.). Pearson Education.
6. Adorno, T. W. (2021). Minima Moralia (O. Koçak &amp, A. Doğukan, Trans.). Metis Publishing. (Original work published 1951)
7. Montesquieu. (2020). The Spirit of the Laws (B. Günen, Trans.). İş Kültür Publishing. (Original work published 1748)
8. Erol, P. (2021). Pina Bausch Interview. Mimesis Magazine. Retrieved from https://www.mimesis-dergi.org/2021/07/pina-bausch-dans-et-dans-et-yoksa-yok-olup-gidecegiz/

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