Re: Copyright of Choreography

On Wed, 7 May 1997, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> Does the fact that this particular legislative history intent is
> only cited in two cases mean something? As a student, I am
> interested in the interaction between statute and legislative
> history, and I wonder what the professors (Tyler, of course,
> included) and the practitioners think? Should we, in this instance,
> automatically assume that the legislative history is binding or
> close to it? If not, how should it be interpreted?

I would hestitate to draw conclusions from the lack of cases mentioning any portion of either the Copyright Act or its legislative history. The Act and its history attempted to cover a great many areas of copyright law that are extremely unlikely to wind up in court for a variety of reasons. Even if they did wind up in court, the odds of very many going through the appeals process to a full published opinion are probably slim to none.

Take for example the provision related to reproduction by libraries. These provisions are of importance to a lot of people and are hotly debated by both sides. But there are very very few reported cases involving copyright and libraries. Reasons for the lack of litigation can include

• the very high cost of copyright litigation
• the relative lowness of damages in many situations especially in comparison to the cost of suit (for example, there are provisions in the law that make it hard to collect a lot of damages from educational institutions)
• the lack of the defendants vulnerability to collection even if a judgement were obtained (you can't get blood out of a turnip)
• the public resistence to and negative public relations that might result from suits against non profit defendants
• the relative low cost of using non litigation approaches in comparison to the cost of litigation.
• the effectiveness of using strong negotiating techniques or even strong arm threatening tactics short of litigation
• the fear of alientating the market from which royalty profits come by suing it
• the incentives in the judicial system for settlement before trial and before handing down a final appeal

I would also hesitate to draw conclusions on the kind of search you did. The phrase "derivative work" appears many times in the legislation itself and in the legislative history. Any time any of those passages is quoted in a case you will get a hit on derivative work. The phrase appears in section 106 which is probably the most quoted section in the entire Act. I've seen the entire section quoted in many a case where only one of the rights was really involved. So probably many of these cases came up for the wrong reason.

On the other hand the phrase "incorporate a portion of the copyrighted work" is much more specific and must less likely to retrieve irrelevant material.

If I were to draw any conclusion from your search, it would be that there is significance in this part of the legislative history even if quoted in only two cases, because the odds of getting quoted at all are so low.

Mary Brandt Jensen		University of Mississippi
Director of the Law Library	University, MS 38677
Assistant Professor of Law	cnicopy[_at_]sunset.backbone.olemiss.edu