Lawsuit for Unauthorized Performances of Béjart's Works in 1990’s Japan
This is a translation of my post from October 18, 2021. However, the contents are slightly different from the original Japanese version.
1. Introduction
From October 9 to 17, 2021, the ballet company Béjart Ballet Lausanne visited Japan for the first time in four years to perform mainly Béjart's works.
Many comments on social media from the audience who saw the performances remind me of the enduring popularity and appeal of Béjart's works. In this post, I would like to introduce a lawsuit filed by Béjart in Japan in 1996 (Tokyo District Court Judgment, 1996 (Wa) No. 19539).
In 1995 and 1996, a prominent Russian ballet company and a well-known ballet dancer performed Béjart's works ("Adagietto" and "Our Faust" *1) for their performances in Japan without Béjart's authorization (*2). After such performances, Béjart brought this case to the Tokyo District Court and claimed compensation and publication of an official apology from the promoters (*3).
Although many years have passed since the judgement was made, this case is still often mentioned in textbooks on copyright law as a judicial precedent concerning the performance of copyrighted works because such precedents are extremely rare in Japan.
2. Outline of the Case
The following is a summary of the main facts recognized in the judgement and the content of Béjart's claim.
2-1 Performances of "Adagietto" by Dancer Z in July 1995
Promoter X invited a well-known Russian ballet dancer Z to Japan, and held several performances in July 1995.
On July 25, 1995, dancer Z's manager, an association in St. Petersburg, informed promoter X for the first time that dancer Z would perform Béjart's "Adagietto" on the following days. Then, dancer Z performed the piece in Tokyo on July 26, 27 and 29, 1995.
Béjart's agent in Japan became aware of dancer Z's performance of "Adagietto" on July 26, and the agent, on July 28, requested promoter X to submit a document showing that the performance had been authorized by Béjart himself, if that was the case. Béjart's agent also informed promoter X that the agent would take legal action against promoter X if the performance had not been authorized.
Upon such notice, promoter X contacted dancer Z's manager in St. Petersburg regarding this issue. Dancer Z's manager replied to promoter X that there were no copyright issues and that any further communication with Béjart's agent would be handled by dancer Z’s manager. On August 1, 1995, Béjart's agent sent a written notice to promoter X, stating that the agent would take decisive legal action against promoter X.
2-2 Performances of "Adagietto" and "Our Faust” in August 1996
Another promoter Y invited to Japan a prominent Russian ballet company, of which ballet dancer Z was a principal dancer and the deputy artistic director, and held performances by that company from July 27 to August 6, 1996.
On June 14, about six weeks before the performances, the Russian ballet company informed promoter Y that the company was planning to perform Béjart’s "Adagietto" and "Our Faust" in Tokyo. In response to such notice, promoter Y requested the ballet company to inform promoter Y in writing that the company had obtained Béjart’s authorization to perform those two works, and the company should change the program if it had not done so. Between July 3 and August 1 of the same year, Béjart’s representative in Japan notified both the ballet company and promoter Y several times that Béjart’s works must not be performed by the company.
However, "Adagietto" was performed by dancer Z at the performance on August 1. "Our Faust" was performed by other dancers on August 2.
Moreover, promoter Y did not list Béjart’s name as the choreographer of the said two works, or the title of the work, "Adagietto," in the program of the performances while other choreographers of other works were listed in the program. That was the direction of the general manager of the ballet company.
2-3 Lawsuit Filed by Béjart
After the performances described in section 2-2 above, Béjart filed a lawsuit against promoter X and promoter Y, seeking
i) compensation for damages based on copyright infringement (performance without authorization),
ii) compensation for mental suffering caused by copyright infringement,
iii) compensation for violation of the author’s moral rights, and
iv) publication of an official apology from each promoter X and promoter Y.
Béjart included neither dancer Z nor the ballet company in the lawsuit.
3. Court Judgement
The judgement of the Tokyo District Court is as follows. The court found that both promoters had infringed Béjart’s copyrights and ordered the promoters to pay compensation but did not accept the claim for compensation for mental suffering or the claim for publication of an apology from each promoter for the unauthorized performances.
Against Promoter X:
The court found that the royalty for "Adagietto" (the amount normally received for the copyright) was JPY300,000 (approximately USD2,654) per performance, and that compensation for damages suffered by Béjart due to the three unauthorized performances was JPY900,000 (approximately USD79,620) in total, and ordered promoter X to pay such amount.
Against Promoter Y:
The court found the royalty for "Adagietto" to be JPY300,000 (approximately USD2,654) per performance and the royalty for "Our Faust" to be JPY150,000 (approximately USD1,327) per performance, and found that the total compensation for damages suffered by Béjart due to the unauthorized performance of those two works was JPY450,000 (approximately USD3,981) in total, and ordered promoter Y to pay such amount.
In addition to that, the court found that the failure to list Béjart as the choreographer in the performance program was a violation of the author’s moral rights (right of name display, Article 19), and ordered promoter Y to pay JPY500,000 (approximately USD45,455) in compensation.
4. Legal Issues
The main legal issue in this case was whether a promoter of a performance could be the subject of the performance of copyrighted work of ballet choreography in general.
It is dancers who demonstrate and show the choreography to the audience, not a promoter. Nevertheless, could a promoter be considered to have infringed the copyrights or author’s moral rights by promoting the performance of the copyrighted works?
Regarding this point, the Court stated as follows and found that a promoter could be a subject of infringement of copyrights and author’s moral rights.
"The subject of the performance of a copyrighted work of dance is not limited to the dancers who actually perform it, but the person who promotes the performance and receives the business profit from the performance could be also the subject of the performance of the copyrighted work of dance, and should be the subject of the infringement of copyrights or author’s moral rights.“
There seems to be little objection to such idea that promoters could be the subjects of performances. This is because promoters may generally express their opinions to the performers about the choice of performance, and have the final decision-making authority. On the other hand, it would be unreasonable to expect individual dancers to disobey the instructions of their ballet company or the promoter when they are instructed to perform copyrighted works, even though their performance would infringe copyright/s. Furthermore, it would be more effective to make promoters responsible for performances of copyrighted works in order to prevent future infringements of copyrights.
However, based on the Court’s judgement of this case, the said two promoters seem to have become involved in the dispute involuntarily, rather than being the main active infringers of Béjart's copyrights. Promoter X was informed only a day before the first performance that dancer Z was planning to perform Béjart's work. Promoter Y requested the Russian ballet company to change the programs, but such request was ignored. The promoters in this case did not have much influence on the decision of the programs. Therefore, I would say this is a marginal case in which the Japanese courts could consider the promoters as "subjects of the performance”.
5. Comments
This is a unique case in which dancer Z and the ballet company performed Béjart’s works even though Béjart’s agents had clearly and repeatedly notified dancer Z and the company that Béjart had no intention to authorize the performances.
Many of Béjart's fans may feel uncomfortable if they knew that the amount of money an author can receive from promoters is usually the same in a case of such willful copyright infringement and in a case of performance with prior authorization. In particular, ballet fans who know that Béjart gave authorization for performance of his works to only limited dancers may not agree with the Court’s judgement.
However, punitive compensation does not exist under Japanese laws. In addition to that, it is exceptional for the Japanese courts to accept a claim for compensation for mental suffering by infringement of property rights including copyrights. Furthermore, the defendants in this case were not dancer Z nor the ballet company (*4), but the two promoters who got involved in the dispute involuntarily.
It cannot be said that the two promoters had any intentional ill will to have to pay compensation for mental suffering due to the infringement of copyrights, based on the peculiarity of this case and the Japanese legal system. It follows that I would say that the judgement of this case is normal and orthodox (*5).
In the meantime, I wonder why dancer Z insisted on performing Béjart's works even though such performances clearly violated Béjart's intentions and the laws.
According to the Court’s judgement, it seems that dancer Z was no longer permitted to perform any of Béjart's works after dancer Z had performed a couple of Béjart's works with Béjart’s authorization in the past. Three years prior to the said performances in 1995, dancer Z performed another of Béjart’s work in Japan without any legal trouble. In addition to that, dancer Z had performed Béjart's work in a joint performance with Béjart‘s ballet company.
I understand that dancer Z was not happy with the fact that he was no longer allowed to perform Béjart's works. However, I would say that what dancer Z should have done was to negotiate with Béjart, and I would like dancer Z to have shown respect for the choreographer and his works.
Footnotes
(*1) Although beyond the scope of this post, I would like to mention another legal issue: how to "identify" ballet works in lawsuits. In this case, the Court simply stated that "a ballet work can be identified by the title of the work, the music, the date of the first performance, and the first performer of the work.” That would be enough for Béjart’s "Adagietto" and "Our Faust”, which are well-known ballet masterpieces. However, we need to consider how to “identify” an unknown ballet work in lawsuits.
I think that a dance notation would be perfect to identify a ballet work but would be too demanding for plaintiffs since dance notations can only be recorded and deciphered by experts, and the amount of information is sometimes too enormous. It would be more realistic to identify a ballet work by using the video of the performance of the work along with important information such as the name of the work, music, etc.
(*2) Under Japan’s Copyright Act, authors shall have the exclusive right to perform a work publicly (Article 22). In other words, authors have the right not to have the work performed without the author's authorization. Therefore, ballet choreographers are free to decide whether or not to give authorization to dancers. It is also possible for choreographers to give authorization to only limited dancers as Béjart did.
However, Japan’s Copyright Act does not allow authors to have complete control over published works. Once choreography is publicly performed, it may be used without authorization to the extent permitted by the Copyright Act. For instance, anyone can perform a copyrighted work for non-profit-making purposes (Article 38). A reasonable amount of utilization of the choreography, compatible with fair practice, and to the extent justified by the purpose of the quotation, such as critiques or research, are also allowed (Article 32).
In addition to that, once a term of copyright protection expires, the choreography is, in principle, freely available for use, and it may be performed for profit or be revised.
(*3) Japan’s Copyright Act defines a copyrighted work as a creative expression of thought or feeling (Article 2, Paragraph 1, Item 1) and provides "dance" as an example of a copyrighted work (Article 10, Paragraph 1, Item 3). Ballet choreography can be a copyrighted work if such work has some individual creativity and is different enough from other woks. However, it is difficult to say how much difference or individual creativity is necessary to be considered as copyrighted work. In particular, in classical ballet, a work is basically composed of a combination of fixed steps and movements called "pas" in French (although there are many types of “pas“ and various combinations of “pas“).
If you choreograph a very short dance sequence with only established “pas”, it is highly likely that the Japanese courts would not recognize the copyrightability of your work. However, in the case of a work with a performance time of about 5 to 10 minutes or more with some individual creativity, the work as a whole would be recognized as a copyrighted work.
(*4) It is unclear why Béjart filed the lawsuit only against the promoters, or conversely, why he did not include dancer Z and the ballet company in the case. I imagine that this decision was based on a comprehensive consideration of various other circumstances, including difficulty and time that it would take to send court documents to dancer Z and the ballet company in Russia and prepare translations, etc.
(*5) I would say that, considering the peculiarity of this case, it would be more appropriate for Béjart’s attorneys in Japan to argue that both promoters were liable for joint tort for aiding the infringement of copyrights by dancer Z and the ballet company rather than for being the subject of the performance of Béjart's works.