On 3/1/98, Leah Theriault <wheedle[_at_]uclink4.berkeley.edu> wrote:
>
> As a former figure skater (though certainly not professional, I got all
> my 'badges' from the CFSA), I can tell you that I have a problem with
> protecting figure skating routines.
>
[snip]
>
> 1) The problem here is in determining at what level the copyright
> protection will operate: if I imitate the complete routine will I
> infringe? How about if I just do the skater's 'signature' move?
> Or a complex, novel set of footwork?
[excuse the sarcasm] I have a problem with giving copyright protection to choreography. How will it operate? If I imitate a complete ballet will I infringe? What if I just do one dancer's signature move? Or a complex, novel set of footwork?
> 2) The whole point of competitive sports is to prove that you can do
> it better. If others cannot try the long, complex sequence of fancy
> footwork that you 'created' (or your coach, most likely - or maybe it's
> a joint work?), their ability to compete is severely curtailed. This
> is most obvious with 'jumps' in figure skating, where one competitor
> introduces a new jump, and then everyone else becomes measured by her
> ability to do the new jump.
This is a better argument, but only for individual moves, and my guess is (as you imply later in a part I omitted) that a court would not permit a jump by itself to be copyrighted.
I understand your concerns, but I think they are misplaced, or at least displaced by the law. There is a tremendous amount of originality that goes into the choreography of a skater's program, and to deny it copyright protection because of the difficulties in deciding when something infringes and when it does not makes little sense to me. What if you talk about skating in the non-competitive arena, where people are paying money just to see a spectacle? Why should one person be able to copy another person's routine, either in its entirety, or enough of it to constitute infringement?
It seems to me that courts are faced with the same problem when they look at any two artistic works (ballets, movies, whatever). Unless they are copied wholesale, they require a deconstruction of their component parts in order to decide what is copyrightable and what is not and what was copied and what was not. I don't see why figure-skating should be any different. Perhaps, ultimately, if a court had to make a distinction between competitive skating and non-competitive skating, distinctions of fair use might come into play (assuming that fair use isn't dead :-) ). Certainly the first two factors in a fair use analysis might be helpful to the defendant, and even possibly the last factor.
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