Is There Any‐Body on Stage? A Legal (Mis)understanding of Performances

• DOI: http://doi.org/10.1111/jwip.12056
• Author: Mathilde Pavis
• Published date: 01 July 2016
• Date: 01 July 2016

Is There Any-Body on Stage? A Legal

(Mis)understanding of Performances

Mathilde Pavis

University of Exeter

This article investigates the legal narrative which frames the protection of performances. The author uses an

interdisciplinary approach to examine the overlap between the narratives describing performers’creativity present in

the performing art studies and in the legal jurisprudence. To this end, the analysis questions whether the law has

followed similar theoretical evolutions these creative fields experienced. It is argued that a fundamental theoretical gap

still separates the two worlds on core issues like creativity, authorship or performance. This article identifies when

such a divide occurred and attempts to explain why such split has not yet been bridged by policy-makers. The artistic

practice of Disability Dance is used to highlight the possible causes of lawyers’(mis)understanding of the act of

performing but is also presented as an argument for reform.

Keywords copyright; performers’rights; originality; embodiment

When designing the regulation of performers’work,

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policy makers did not attempt to define the term

“performance”or “performing”and by-passed this issue by merely listing the types of performances

qualifying for legal protection.

2

Looking at the definition of the word, performing appears be a form of

embodiment. Indeed, under “performance”the Oxford dictionary reads “an act of presenting a play,

concert, or other form of entertainment”(Stevenson, 2010, p. 572) whilst embodiment is defined as “a

tangible or visible form of an idea, quality, or feeling; the representation or expression of something in a

tangible or visible form”(Stevenson, 2010, p. 1320).

According to these two rather simple definitions, it may seem fair to associate performing a work to

embodying it. If plays, musical compositions or choreographic works are the collection of their author’s

expression of ideas, their performed versions

3

are all embodiments of such ideas since they “represent

[them] in a tangible or visible form”to the audience. Whilst this approach is straightforward and the

argument tenable, it is also inconveniently simplistic for it reduces the role of performers to that of

“embodiers”rather than creators, minimizing their creative input in the work they perform.

The (r)evolution in theorizing around performance is not a question of definition. Diverging

performance theories do agree on associating performances with embodiment but differ from one another

on the nature of the relationship performances entertain with the material they interpret. This situation

urges the question of what performances are in comparison to the text they communicate. Are they lived

copies of the text or a recreation of it? What does it takes to “embody”(perform) a work? What does the

performer do with her body and her mind when she performs the work of another? Is interpreting a

character creative? This thread of interrogations leads to question the existence and nature of performers’

creativity. If the performing arts studies have come to acknowledge the valuable relationship between

performers and the written work for its transformative dimension (Fischer-Lichte, 2008) the legal

jurisprudence has dealt with this complex connection in a very simplified manner, denying performances

their creative value.

These questions ultimately tie the discussion to a wider questioning around mind/body dualism and

authorship. Since intellectual property laws do not engage with the former philosophical debate, it is

through its regulating of authorship (copyright) that policy makers reveal their understanding of

performances.

©2016 John Wiley & Sons Ltd 99

The Journal of World Intellectual Property (2016) Vol. 19, no. 3–4, pp. 99–114

doi: 10.1111/jwip.12056

This article briefly exposes significant philosophies of performance detailing some elements of their

evolution from historical to more recent sources before comparing such narratives to the current legal

framework. The last section gives possible reasons to explain why a theoretical gap still separates the legal

perspective from the rhetoric present in theater, dance and performance studies. This article does not aim to

give a thorough analysis of the twists and turns taken by these studies in their theorizing the act of

performing. The objective is to compare the two sets of narratives, aesthetic and legal, in order to assess

whether the law has updated its concepts on the basis of the development the field envisaged.

Philosophies of Performance

If the art of performing has been under study

4

since the Ancient Greece, the focus of the discussion was

placed on the impact performances had on the community rather than on the relationship tying the

performer to the author’s work (Aristotle, 1997; Peponi, 2013; Rousseau and Bloom, 2004). Analyses

examining the connection between the performing artist and the material she interprets only emerged in the

eighteenth century with notably the work of Denis Diderot (Diderot, 1883; Dieckmann, 1961). It is only

two centuries later that such connection became a core phenomenon investigated by theater and

performance studies (Fischer-Lichte 2008; Schechner, 1977).

Early works on the process of performing focused on the “art of acting”(Diderot, 1883; Jourdain,

1916; Simmel, 2001).

5

The French philosopher Denis Diderot is one of the first philosophers to dedicate a

part of his writing to its study (Jourdain, 1916) claiming that the performer is a puppet at the service of the

master’s mind, the author of the play. He writes: “a great actor is also a most ingenious puppet, and his

strings are held by the poet; who at each line indicates the true form he must take”(Diderot, 1883, p. 62).

Diderot’s writing illustrates the eighteenth century’s beliefs regarding actors’lack of creativity, beliefs

which persisted through the late nineteenth century and still mark our current legal thinking. Under this

assumption, performers only act as the neutral media through which the playwright communicates her

work to the audience. From its first writing to its reception by the audience via the performance, the work

and the meaning it conveys are controlled by the author and the authority of her prose.

This model relies on two different but interlinked premises. The first one regards the playwright as the

sole author of both the written work and the performance since the two versions are considered as identical

in their substance. Plays, like musical compositions,

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are conceived as readily performable collections of

ideas. As a result, not only need performers not to have any input in their activity, the performance, but they

must not; they must not alter or modify the underlying work. The performer is seen as a vessel through

which meaning can be conveyed without distortion for the text transcends the performative stage. The

authority of the text itself is such that performances of the same dramatic piece should not substantially

vary from one another. On this point, a clear parallel can be drawn between Diderot’s work and the myth of

the “author-genius”often referred to as the theoretical and philosophical base of authorship in the legal

literature.

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In his Paradox of Acting (1883) the French philosopher gives a clear illustration of the impact

such deference for authors has on understanding the art of performing, an understanding which positions

performers as the lesser artists.

This first assumption is enabled by the belief in performers’universal and malleable body, belief

which forms the second premise underpinning this model. This perspective is embedded in Diderot’s

analogy between the actor and the puppet where he compares their corporeality. To him, the great (real)

actor is an ingenious puppet because “most ingenious puppets take every kind of shape at the pull of the

string in his master’s hand”(Diderot, 1883, p. 61). Diderot associates the performer’s body to a

“pasteboard”(Diderot, 1883, p.61) and the actor to a “pasteboard figure”whose “own special shape never

interferes with the shapes [the author] assumes”(Diderot, 1883, p. 53). The great actor’s body is so neutral

that it can be “everything and nothing”(Diderot, 1883, p. 53). Diderot never doubts that such universal and

Mathilde Pavis Is There Any-Body on Stage?

©2016 John Wiley & Sons Ltd

100 The Journal of World Intellectual Property (2016) Vol. 19, no. 3–4