Glee‘s Kiki Drama: Why Would FOX Deny Choreographers No-Fee Creative Credit?

Also, SJP needs a dance captain.”

“Homage” is the word producers of FOX’s hit show-choir series used in an email obtained by TheaterMania to explain to Landers why he would not receive credit for his original choreography, set to The Scissor Sisters’ club hit “Let’s Have a Kiki.” Landers’ dance transformed the song into the new millennium’s gay “Macarena,” which worked its way from YouTube to nightclubs across the globe and onto the radar of FOX’s production studios [who did not respond to TheaterMania’s requests for comment by the time of this publication] in just under four months. The email, dated November 14, was sent by Mark Fried, President of Spirit Music Group, which handles Glee‘s music licensing. Fried explained that the show’s producers viewed the dance number as a “loving homage” to Landers’ original “Kiki.” In their eyes, Sarah Jessica Parker would not be dancing to the work of a specific choreographer. Rather, she would be performing a piece of faceless pop culture that had been waiting to be plucked from the free market.

On October 30th, Landers reached out to Glee through The Scissor Sisters’ manager to confirm whether his choreography would be used and if he would be credited. Fried’s response, dated November 14, is as follows:

“[Glee‘s producers] couldn’t confirm if their choreography copped the Scissors ‘Kiki’, but said almost all of their choreography since inception has been a loving homage to the source material – from West Side Story and Singing In The Rain to many of Madonna’s and Britney’s videos. While [producers] never give credits (which roll by on screen in a half-second) they note that theist [sic.] popular show blogs often identify the source choreographers and this reaches hundreds of thousands. We’d be happy to help on this campaign.”

In other words, Lander’s greatest commercial success had earned him the potential for credit on fan blogs.

Landers never expected that his “Kiki” would lead to anything other than localized rump-shaking. The triple-threat of an artist spent several years as dance captain on the national tour of Cats before settling in New York, where gigs were a patchwork quilt of low-paying regional choreography work, performances with Brooklyn’s avant-acrobatics troupe Streb, and the no-pay creative collaborations Landers frequently took to “keep from going insane in between catering jobs.” In July 2012, a friend approached the choreographer to ask if Landers would set a dance to a new song by the band she sang back-up for—the alt-clubpop group The Scissor Sisters.

“I was broke, and so was the band,” Landers explained to TheaterMania. “They were up front that they couldn’t pay me, and I was fine with that. I had been a fan for a long time.” He explained that he and The Scissor Sisters negotiated a simple handshake contract. “They said they’d pay me when someone paid them, and I said I would work out some ill choreography that would make people dance.”

Landers held up his end of the bargain. The song and dance debuted in late July and immediately went viral, with tribute videos featuring the choreography popping up on Facebook, YouTube, and the walls of gay clubs from New York to London. Australia’s Mardi Gras featured a flashmob of the dance, and the Sisters took it to TV’s The Wendy Williams Show and Strictly Come Dancing. An official rehearsal video teaching the choreography posted to YouTube from the Scissor Sisters’ official account on July 27, 2012, crediting Landers as choreographer, currently has over 3 million page views. So the choreographer was not surprised when word got out “Kiki” was going Glee –what puzzled him was finding out via Twitter. The tweet that confirmed Kiki was on her way, from Glee cast member Chris Colfer, prompted Landers to contact the Sisters, whose manager contacted Glee–who said their “homage” would not include the original choreography, nor credit its choreographer.

Sean Roschman, a choreographer and the Artistic Director of Roschman Dance has been solicited for so-called “choreography” jobs that consist of three specific steps: watching a music video, learning the moves, and then teaching the moves to dancers, he told us.. He has been asked to create a “Gangnam Style” flash mob, to learn and teach his dance company numbers performed by Madonna, and to duplicate work created by unknown choreographers, like Landers. Roschman always says no.

“They’re essentially asking you to embellish and replicate someone else’s creativity,” he said. “It’s like asking a writer to read All Quiet on the Western Front and then write it down.”

TheaterMania sent the YouTube clip of SJP’s Glee performance, along with The Scissor Sisters’ aforementioned dance rehearsal video to Bill Herman, Professor of Media Studies at CUNY Hunter College and author of the book The Fight over Digital Rights:The Politics of Copyright and Technology (Cambridge University Press, 2013). The choreography looks “totally the same,” Herman assessed. “I’m not a lawyer, nor an expert on choreography, but this is very similar – obviously so, even to the untrained eye.”

Since the Scissor Sisters’ music video was the only tangible form of Landers’ work pre-Glee, and because Landers was shut out of the circuit, it’s unclear how the dance captain and Glee‘s Emmy Award-winning choreographer could have done anything more in the SJP sequence than the type of work Roschman likened to rewriting classic novels by hand.

The reason why a show like Glee— which features handfuls of re-imagined popular songs in every episode– can exist is because of fair use. In United States copyright law, “fair use” is an exception to the rights typically held by the creator of an original work. Out of the four factors that legally establish fair use, the most relevant to Landers is subsection 1B, “the transformative nature of the reproduction,” Herman said. “[What matters is], how different is the new work and/or how different is the reason for using it?” he explained. “So if I stand up in a Comedy Central special and do a really exaggerated ‘Let’s Have a Kiki’ to hilarious effect, that could be pretty transformative. Doing the same dance for the same reason but for a larger audience? Definitely not transformative.”

Herman went on to explain why he placed Glee‘s “homage” in the latter category.

“I support a wide interpretation of fair use,” Herman said. “I love Girl Talk, and even think what Vanilla Ice did to Queen should be viewed as fair use – if not great music…Here, though, we have a major media company using a creator’s work, without his permission, for exactly the same reason the work was created in the first place: to be a captivating, expressive dance routine.” Herman also pointed out that “the heart of the work,” meaning all of the choreography’s most memorable moves, are synced up with the song in the same place, expressing the same sentiments as the original.

On Glee, “Kiki” is interrupted with a verse from a different song, Promises, Promises‘ “Turkey lurkey Time,” sung by Lea Michele. We asked Herman if the insertion of the turkey bit made the number a “mash-up.” If it did, it would add heft to Glee‘s fair-use claim. “[T]his is not really a mash-up at all,” Herman said. “It’s much closer to being just the same video with a different cast “

Although Landers’ work (and any work that is “fixed in a tangible medium”) is copyrighted, his legal options are limited by the fact that he did not register the dance with the Copyright Office, and that he choreographed “Let’s Have a Kiki” for the Scissor Sisters on a handshake, without a contract. This was not an unfamiliar concept to Roschman, who said he frequently works on an unwritten promise of money and credit to come. He once worked with the promise that his company would be put on a six-month tour. His employer, unbound by a contract, canceled at the eleventh hour, when his dancers were set to leave their day jobs.

“Choreography work is scarce, and paid work is even more scarce,” Roschman said. “[We work uncontracted] because we are desperate for work. You roll the dice every time you work with someone new, but when they ask me to jump, I ask, ‘How high?’ because that’s the way the market is right now.”

However, a lack of contract or a registered copyright does not leave Landers in the dark. According to Herman, Landers could still pursue an injunction that would prevent future airing of Glee‘s Thanksgiving episode, and ban its distribution in DVD box sets. And if Landers were to register his work now, he could sue for monetary damages and attorney’s fees if the episode is ever used again.

“[I]t’s particularly offensive for a major media company to do this,” Herman said. “Not only can FOX afford this, News Corporation is part of the ‘big content’ machine that’s constantly wailing about ‘the creator’ and ‘piracy’ in the name of ever-more draconian copyright law…[They] don’t find that argument too persuasive when the shoe’s on the other foot. Here, they have an actual creator who wants the easiest licensing ever – essentially, a Creative Commons ‘Attribution’ license. And they kick him in the teeth and say, ‘We’re helping you with free publicity, too bad.'”

Roschman said this kind of treatment is representative of the value currently placed on choreography. “It’s as if our [work] is akin to some kind of improv and we should be grateful it’s even used,” he said. Most aspiring choreographers, however, are grateful when their work is simply used by a big TV show, even without pay–as long as their name appears on it.

“If they don’t allow you credit, than what’s the point?” Roschman said. “You can’t put it on your resume. It’s hard to break into the TV world, where the money is. This could have been [Lander’s] big break.”

Herman agreed. “If I were Landers? I’d register the copyright in the routine tomorrow, hire a lawyer, and make an example of these folks.”

From the moment Landers saw the Tweet about “Kiki” on Glee, he has pursued one thing: credit. The Scissor Sisters, after receiving a sizable sum from Fox and Spirit Music for the rights to their song, paid Landers just as they had promised during that handshake. Since, Landers has only pursued two things from Glee: confirmation that his choreography was being used in the November 29th episode, and some kind of documentation that stated his work was his work. He received neither. It wasn’t until the show aired that the choreographer saw his creative property was indeed being duplicated step-by-step, and the letter from Fried was a solid answer that credit, even where it was due, would not be considered. At the time of publication, no “blogs” of any kind have identified Landers as the choreographer, and neither FOX nor Spirit Music reached out to assist him with publicity.

One offer for credit was extended by the Scissor Sisters’ manager, who promised in an email to provide Landers with a letter of documentation which would identify him as the creator of the work. Landers has requested the proposed letter several times since the November 29th airing, but received no response.

It’s a frustrating, if not painful, situation that Landers laughs openly about. “I thought I was doing a favor for a friend,” he laughed, rubbing his temples. “It seemed okay at the time. But lesson learned! Get a contract.”

“A valid question [is] why they [Glee, FOX] wouldn’t pony up the credit,” Christopher Pennington, Executive Director of The Jerome Robbins Foundation and Robbins Rights Trust, told us. The Foundation and Trust were set up by the West Side Story director and choreographer before he died, to protect the integrity of his work. Reacting to Landers’ story, Pennington said, “It’s really disappointing on the part of Glee‘s creators…especially because they are so artist-oriented. The show is about performers.” But despite being “appalled,” he had some theories as to why they would deny Landers his name in the quick-rolling end credits.

The fact that the show offered, in writing, to help Landers receive credit on “blogs” means they acknowledge the work belongs to him, Pennington said. Which rules out a denial of credit on the basis that it would open up some kind of legal doorway. More likely, Pennington guessed, FOX assessed its risk in not crediting Landers and decided that it was low, since they viewed him as a little fish in a big sea.

“Legality aside…there is a moral responsibility to give people the credit they deserve,” Pennington said. “But what always happens when you’ve got an individual choreographer and huge studios [is that studios] think…’How much money does this person have to sue me?'”

Landers’ response to Pennington’s quote, and the question of how much money he has to sue the studio: more laughter. “They win,” he said, “in the first second of that little game. I don’t have any money!”

He continued that he would probably not sue even if money was no object. “Look, a person whose opinion I respect told me a while ago that no one — no one — wants to work with a litigious artist. I take that to heart. I don’t hate Glee. I don’t want their money. What I really want is for this never to happen to anyone else again.”

It’s a nice sentiment, but not entirely true. Truth is, Landers does want something for himself.

“I guess what I wanted was a credit in that sad little end credits section no one reads,” he said. “I wanted to be able to say, ‘That dance? That was mine.’ It’s not about money. It never was.”