Copyright: Questions

Have a question or comment? Add it here.

Question re Dance:

Consider the following:

http://www.celebritydirtylaundry.blogspot.com/2007/03/justin-timberlake-stole-john-travoltas.html

• Can John Travolta make a copyright claim against Justin Timberlake?
• Does the copyright in such dances belong with the creator of their respective movies (i.e. Grease and Saturday Night Fever)?
• With the respective choreographers employed in making the movies? Both? All?

Who is the "author" of the dance?

Next, an hypothetical:

Suppose someone tried to utilize Michael Jackson’s “Moonwalk” dance move in a performance during a tour.

• Would Michael Jackson be able to make a successful copyright claim for the move?

Is it original expression? fixed? or is it just an idea (merged)? Is the use fair or infringing?

• Does it matter that the dance move is specifically identifiable to almost any lay person’s eye?
• Is this more of a Trademark issue?
• Or a right to publicity?

If it is being used to imply that Michael Jackson endorsed a commercial product and to cause confusion, he might have a trademark or publicity claim.

Question re Music:

After reading the Mariah Carey case, I am a little confused about the separation of protectible/non-protectible elements of a musical composition. How far may a court (or expert) proceed in separating the elements of a composition in this type of case? Shouldn't the fact that there are only a limited number of notes available in the musical universe play into this evaluation? Also, because of this, isn't it inevitable that certain note compositions, uses and compilations will be re-used over and over throughout time? If the analyzing entity dissects any composition far enough, won't any musical composition infringe on almost any other musical composition, given the limited number of notes available?

Class 2 Question Regarding today's discussion on Fixation Challenges and Recording of Stand Up Improvisations, would a security camera recording the stand up routine not for the material but for protection be considered a fixation in terms of affording copyright? The stand up comedian (or other author) is aware of the security camera on the premises and has given authorization for the camera to take video/audio images of his improvisation; therefore, does the purpose of the recording matter in affording copyright?

Response:

Fun question. We start with the statutes. Sec. 102 "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression..." and the definitions in sec. 101: "A work is 'fixed' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration...."

As you note, a key is "by or under the authority of the author." It would likely be up for argument whether the performer's awareness of the camera implicitly authorized the fixation for copyright purposes. If he did, note that he and not the security camera operator would be the "author" of the resulting copyrighted work. If he didn't, there's no copyright at all. If he authorized the taping, and didn't sign away any rights, do you think he can he stop police from copying the security camera footage to investigate a theft discovered after the performance?