Re: chess moves

On Wed, 10 May 2000, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> On 05/09/2000, Thomas Workman <tworkman[_at_]erols.com> wrote:
> >
> > I disagree with the rationale that chess moves are not protectable
> > because to do so would inhibit play of the game. Under this logic,
> > music would not be protected because to do so might inhibit
> > composers from creating new works.
>
> I disagree with your analogy. Unlike music, chess is a competitive
> enterprise.

   I am not sure how you define "competitive". Composers are certainly competitive, as are jazz musicians who compose on the fly.

> The whole point of the game is for players to compete.

   As an amateur musician and one who once played chess competitively (I was not good at it, however) -- I do not see the distinction. When I sang with the Boston Pops, or the Tanglewood Festival Chorus -- the making of music was very competitive. The commissioned works were very competitive, on the part of the composers. The Boston Symphony is very competitive in making recordings of classical works, and competition for individual seats in the orchestra is highly competitive (The BSO is the sixth highest paid orchestra in the world, when I last studied the union charts that were posted backstage at Symphony Hall in Boston). I never heard of a competitive aspect of a work as having any bearing on the ability to protect the work with a copyright. The BSO vigorously protects its intellectual property.

> If one player cannot copy another's moves, competition is stifled.

   If composers did not copy the style of other composers, we would not have a body of classical music that we do today. Traditional musical performances were once radical, and "unique". They are not today. Does that make them "functional"? Many musical instruments can only play discrete notes (the piano, for example), which would make all music for them "functional", yes?? Other instruments have the complete spectrum of pitch (the trombone or violin, for example).

> It would be like holding a high jump competition in which only one
> jumper could use the Fosbury Flop. Since that is the most efficient
> way to clear the bar, the result would be foreordained.

   Not subject to copyright, because not "fixed in a tangible medium", true?? I lost you in the introduction of this thought into the discussion.

> In this respect, chess moves [and combinations of chess moves]
> are essentially "functional," and fall within the proscription
> of 102(b) against copyright protection for any "idea, procedure,
> process, system, method of operation, concept, principle or
> discovery." A chess move is a method of operation.

   Concert pitch is 440 hertz for an "A", that is perhaps functional. In a musical octave, there are eleven steps (in western music, at least). A through G, with four flats (or sharps). In chess, there are six discrete movement patterns (Queen, King, kNight, Bishop, Rook, Pawn). That a queen moves on the diagonal is also functional. That an "A" resonates at 440 hertz is functional.

> Moreover, even if one accepts your analogy, it IS the case that the
> basic building blocks of music are not protected by copyright. One
> cannot copyright individual notes, major or minor keys (or any of the
> various "modes"), or individual chords within keys, because doing so
> would inhibit composition. One can only copyright an original
> combination of notes, chords, and keys.

No argument here.

> This is where the analogy breaks down. A combination of notes, chords,
> and keys is no longer functional; whereas a combination of chess moves
> remains functional.

   I agree with the first predicate, but cannot see how the second is supported by your discussion.

> In order to compete in chess, one must be able to copy combinations
> of moves (i.e., entire strategies), not just individual moves.

   And as any virtuoso musician will tell you, they copy many aspects of the masters in the development of their style, but their music is their own, when recorded, and protected by copyright.

   I know of no decision that holds that "competition" is an indicia of function, and thus disqualifies a work from protection under the copyright statutes. Have you a cite in mind??

Thomas Workman
<tworkman[_at_]erols.com> Received on Thu May 11 2000 - 18:50:05 GMT