RE: Authorship / Gilberth studies

From: Agenbroad, James (Civ,ARL/CISD) <jagenbro[_at_]arl.army.mil>
Date: Fri, 12 Dec 2003 16:43:06 -0500

I am reminded by the fact that "Cheaper by the Dozen," comes out soon of another example of performances that are filmed (and therefore fixed) but not expressive. (and therefore not works of authorship) Ignoring that copyright law was very differnet then, Gilberth did a large series of time/motion studies by filming people working. Sometimes they are of the before and after variety, where they did it the way that they were accustomed to the first time, and the way he told them to (possibley with different equipment) the second time. The people who were filmed were simply doing work, whether their actions were scripted by Gilberth or not. Since their work was not in any way expressive, merely functional, it was not a work of authorship, IMHO. This would be a close analogy to a sporting event, where the actions of the players are functional, not expressive.

-----Original Message-----
From: Chris Sprigman [mailto:sprigman1[_at_]yahoo.com] Sent: Tuesday, December 09, 2003 1:57 PM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: The Rights of Major League Baseball

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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Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Sat Dec 13 2003 - 02:43:06 GMT