Re: New Work Types Problem (Was: Dead Sea Scrolls, Sweat of Brow Once Again)

On 3/3/98, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
>[excuse the sarcasm]

Well, you must use whatever you think you've got. ;-)

> 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?

Despite your attempt to undercut the main thrust of my argument, I remain firmly entrenched in my view that Copyright law should be used sparingly to protect only those creative investments which would not otherwise be made for lack of protection. And I am sure that it will come as no surprise that I am not overwhelmingly in favor of copyrighting choreography, either. While I concede that such works should be protectible at a broad level, once a work is given any protection at all, the forces of gravity tend to result in greater and greater protection for that work - in this case that would mean protection for smaller and smaller components.

Let's not forget that wholesale copying will not necessarily occur without copyright laws: there are internal incentives which operate to discourage such copying. In the 'artistic' sports, such as figure skating and floor gymnastics, these internal incentives are particularly strong: creativity is valued such that no competitor would want to copy a routine exactly. Judges want to see originality in overall composition as well as skill in the component moves.

Against this consideration is the fact that Copyright laws themselves create very real, perverse incentives, because they essentially provide a new way to 'compete' - by preventing others from competing in specified ways. So, although no competitor would likely copy a routine exactly, copyright protection provides an incentive for the copyright holder to prevent competitors from performing particularly coveted parts of that routine. Hence, the pressure towards finer-grained protection over time.

Of course, these arguments apply to all Copyright law generally, but I think that this should be resolved at the subject matter level, rather than the scope level. Otherwise, we risk bloating copyright law beyond belief such that my actions only go unlitigated because you can't bother to sue me, or I can rely on an implied license, or the 'privilege' of fair use... I think that this is an undesirable result.

> 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.

The difficulty of deciding when something infringes is only a small part of my argument.

> 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.

This is what makes little sense to me: Why waste all this time and money in the courts when we could be at the arena enjoying the results of the competitive process of sportsmanship? The whole point of sportsmanship is to learn and improve by imitation. In the case of professional skating, the arguments are much the same: at some point, overprotection of the creativity of 'first comers' hinders the ability of others to be creative.

I see no countervailing benefit to providing copyright protection to figure skating routines, signature moves, routes to work,....

Leah Theriault
<wheedle[_at_]uclink4.berkeley.edu> Received on Thu Mar 05 1998 - 01:54:39 GMT