I'm not sure what to make of John's analysis re: lack
of fixation. An improvised speech is subject to
copyright, even though it is not written down when
given, if it is simultaneously recorded. Major league
baseball games are simultaneously recorded. If there
were no other bar to copyright, I don't think fixation
would be one.
I think David Post is right to assert that a baseball
game does not involve "authorship". The physical
actions of baseball players are not expressive but
functional -- they unfold according to a extensive set
of rules, and they are directed toward success in the
context of those rules. In contrast, an
improvisational comedy routine may not be planned in
advance, but it is still original creative expression
-- just like a saxaphone improvisation in a jazz tune
is, if fixed, part of the resulting copyright on the
performance.
For those who think that a baseball game is a product
of authorship, think of the same argument in the
context of a chess game. Chess games unfold according
to a set of rules that is complete -- complete in the
sense that every potential move is contemplated by the
rules and either allowed or proscribed. So in one
sense there is no "originality" in a chess move,
because every move is anticipated in the rules. There
may be a sort of "creativity" in the ability of a
grandmaster to see the power of a particular move in a
particular situation, but that is analytic creativity
-- it is neither expressive nor original. Analytic
creativity (an algorithm, for instance) can be
patented. It can't be copyrighted.
- John Noble <jnoble[_at_]dgsys.com> wrote:
> At 4:35 AM -0500 12/8/03, David Post wrote:
> >A baseball game is not uncopyrightable because it
> consists of
> >"facts" -- it's uncopyrightable because (in my
> opinion") it's not
> >"authorship." A play-by-play of a movie might well
> be an
> >infringement, because the underlying work (the
> movie, or the
> >screenplay) is a work of authorship and you're
> reproducing it ...
> >but the work underlying the baseball play by play
> is not "authored"
> >in this sense. Here's what the 2d Circuit said in
> NBA v. Motorola:
> >
> >"Sports events are not "authored" in any common
> sense of the word.
> >There is, of course, at least at the professional
> level,
> >considerable preparation for a game. However, the
> preparation is as
> >much an expression of hope or faith as a
> determination of what will
> >actually happen. Unlike movies, plays, television
> programs, or
> >operas, athletic events are competitive and have no
> underlying
> >script. Preparation may even cause mistakes to
> succeed, like the
> >broken play in football that gains yardage because
> the opposition
> >could not expect it. Athletic events may also
> result in wholly
> >unanticipated occurrences, the most notable recent
> event being in a
> >championship baseball game in which interference
> with a fly ball
> >caused an umpire to signal erroneously a home run.
> >
> >What "authorship" there is in a sports event,
> moreover, must be open
> >to copying by competitors if fans are to be
> attracted. If the
> >inventor of the T-formation in football had been
> able to copyright
> >it, the sport might have come to an end instead of
> prospering. Even
> >where athletic preparation most resembles
> authorship -- figure
> >skating, gymnastics, and, some would uncharitably
> say, professional
> >wrestling -- a performer who conceives and executes
> a particularly
> >graceful and difficult -or, in the case of
> wrestling, seemingly
> >painful -- acrobatic feat cannot copyright it
> without impairing the
> >underlying competition in the future. A claim of
> being the only
> >athlete to perform a feat doesn't mean much if no
> one else is
> >allowed to try."
>
> I would reach the same result with a different
> analysis, that doesn't
> exclude "improvisational" performances from
> copyright protection. I
> think the game itself is not a protected work
> because it is not fixed
> in tangible form. A broadcast of the game, on the
> other hand, is a
> protected work. So long as the play-by-play is an
> independent
> creation -- i.e., is not "derived" from the
> protected broadcast -- it
> is non-infringing.
>
> John Noble
>
>
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Received on Tue Dec 09 2003 - 23:56:31 GMT