How to protect copyrights in choreography: Registration with the U.S. Copyright Office

Intellectual Property ("IP") is not my practice interest, but I was helping a non-profit with a project and wanted to share some of the bigger chunks of information I found. The non-profit is a dance company that wanted to know how to protect the IP rights of their performances.

The IP involved with choreography, or more broadly performing arts, is protected by copyright under the Copyright Act of 1976. Copyright owners have the (mostly) exclusive right to perform, display, and publish their work. A copyright owner could be the individual author, a separate claimant by agreement or employment, or an organization. Although copyright attaches at the authorship of a work, registration with the U.S. Copyright Office ("Office") is required prior to the pursuit of any infringement litigation. Unless a copyright is a work made for hire, a copyright endures for the life of the author plus seventy years. Unless a copyright is renewed, when the copyright period comes to an end the work will enter the public domain and will be available at anytime to anyone be used in anyway (without permission and without paying fees).

Published and unpublished dramatic works can be submitted for registration via electronic process at eCO. eCO's interface is enormously user friendly and has advantages over paper filing: quicker turnaround (approximately nine months contrasted to twenty-two), cheaper ($35 contrasted to $50), and allows the user to track the status of the application for registration. During the electronic application a copy of the work must be sent to the Office. In the case of choreography, the copy should either be a video or precise description of the work. If the work is published, two physical copies must be sent to the Office after submitting the electronic application for registration (eCO will produce a shipping slip to be included with the physical mail). If the work is unpublished, only one copy is necessary and can be submitted electronically via eCO.

After the application is submitted, the fee is paid, and a copy of the work (or copies in the case of a published work) is appropriately submitted to the Office, the Register of Copyrights ("Register") reviews the application and work. The applicant will either receive a certificate of registration with an official seal, or a notice of refusal. If the applicant receives a certificate, the registration is effective the day the application, the fee, and the copy of the work were received in acceptable form to the Office.

"Publication" vs. "Performance." While a dance recital with a public audience is a performance, it is not a publication. "Publication" in this regard requires the performance to be released in a medium to the general public without any knowledge of what that public's intent is as regards the distribution. So for example, if performances were to be placed on a DVD and sold online; this is publication. "Publication" is not satisfied, however, by releasing the performance in a medium to a known group of limited size which has a known and limited purpose for that distribution (that, in fact, is called a "limited publication").

A "Work Made for Hire." The duration of the copyright is slightly different, but who owns the copyright is completely different. To determine if a work is made for hire, first determine if the author is an employee or an independent contractor. An author might be an employee if the employer has control over the work and over the author. If the author is an employee, you must determine if the work was created within the scope of the author's employment. If you answered yes to both inquiries, then the work is probably a work made for hire. Alternatively, the author may be an independent contractor whose work was especially commissioned under an agreement where the work is exchanged for compensation, etc. If so, it must be determined if the work satisfies one of several statutory categories: "for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas." Again, if both inquiries are satisfied, then the work is probably a work made for hire. Unless an agreement exists saying otherwise, works made for hire give the both the authorship and the copyrights to the employer. Works made for hire are protected by copyright for ninety-five years from the date of publication or one hundred and twenty years from the date of creation (whichever occurs first).

The U.S. Copyright Office help line is accessible at (202) 707-3000 (M-F, 830a-5p EST).

Library of Congress ("Library"). Among the published works sent to the Office for registration, the Library has discretion over what it will include in its collection. The Library does not take unpublished works. Any published works accepted by the Office for registration that are not chosen by the Library will be retained on file with the Office for the life of the copyright.

Google Books - Satan's Library...

...or How I Learned to Stop Worrying and Love the Internet.

The Google Book Project has been controversial since it first began in October, 2004. My intention with this post, my last guest blawging here, is to give a very brief synopsis of the issues that are causing such consternation and to point out some of the more interesting arguments that are being presented. If it seems that I am in anyway biased towards Google that's because I am, I'd love to work in Google's legal department, and I love it when stuff is free (I have a long held belief that if you're paying for anything online then you're being robbed). Also, in 2007, while I was a student in University College Cork, I authored a paper entitled "Don't Be Evil - The Google 'Book Search' Project". The paper dealt with an examination of Google's "Book Search" Project and whether it would pass a "fair use" copyright test. I was pretty proud of my work, and it was even shortlisted for the prestigious Matheson Ormsby Prentice Undergraduate Prize in Information Technology Law. As a result, I have tried to keep an eye on the Project.

Issue

The primary issue that has everyone talking in recent months is Google's controversial deal to scan and digitize in copyright, but out of print works, including "orphan" works, i.e. works where it is almost impossible to identify the copyright holder(1). This has lead to investigations by the US government over their concern about the possibility of a Google monopoly over "orphan" works, and also generated a great deal of consternation amongst Google's rivals: Amazon, Microsoft and Yahoo.

Arguments

Those against the deal argue that Google will have an inordinate amount of control over an enormous volume of information and that what is needed is strict regulation of this kind of activity(2). While those in favour of the deal are keen to point out that if Google has the resources and the capability to save "orphan" works then it should, even if the motivation is profit(3).

Conclusion

As I stated in the conclusion to my paper, "After all, as George Orwell wrote: “Who controls the past controls the future”, and Google could be said to be going a long way towards this end... Similarly it could be seen as creating the need for more responsibility from corporations such as Google, who are now effectively acting as the stewards of information for the public. But these worries might well be unfounded seeing as Google believes, at least informally, in the phrase: “Don’t be evil”.

Today, I would argue that more regulation is never a good thing (most governments aren't able to use the regulations already in place, let alone cluttering up the law libraries with even more). However, keeping a watchful eye on Google should be encouraged, and when I look at the debate that the deal has created I admit to smiling a little, because if Google does become evil in the future then thanks to the internet everyone is going to know about it.

You can find a copy of my paper HERE

Footnotes

(1) "Orphan" Works, Wikipedia Entry, en.wikipedia.org/wiki/Orphan_works
(2) http://www.theregister.co.uk/2009/08/28/google_book_research_corpus/
(3) http://blogs.zdnet.com/BTL/?p=23506

A Treasure Trove of Frida Kahlo's Memories

There seems to be a large collection of Frida Kahlo’s possessions that will be soon up for sale, from her letters, jewelry, to sexual sketches she had made in a notebook. However, as the NYTimes reports, there is a big question of authenticity. While the artist’s copyright protected works may be in jeopardy, the bigger issue is fraud.

The New Yorker had an article a few years ago regarding Jefferson bottles of wine, wines that had belonged to Thomas Jefferson yet to be shipped to the US, that had been alleged to be found in a cellar in France. There were allegations that a famed wine collector was making counterfeit wines and bottling them in the original Jefferson bottles, for which people were paying hundreds of thousands of dollars for.

While many people may not care that these wealthy art and wine enthusiasts are being scammed, to me it seems more important to point out that not only is fraud occurring, but that these fine names of artisans are being diluted with fakes. I seem to oscillate between copyright protection and reinventing copyright law [re: Girl Talk blawg]. However, there is a distinction between fraudulent reproduction for economic gain and a remixing, reincorporation of art to create new art. The latter is not attempting to pass off their appropriation as the original artist’s, but rather their own. So which is worse? The plagiarist or the imitator?

"I'm not Blockbuster Boy"*

I'd like to discuss a news story that particularly annoys me. The story proclaims that Blockbuster is to close as many as 960 of its stores in the US as a means of streamlining their operations. That's up to 960 stores worth of employees that are going to be unemployed.

The reason that I am so irate is that the biggest reason for the closures is bad business management. The board of Blockbuster can't just blame their failures on the lousy economy. Sure they've been hit, but what happened to escapist industries supposedly thriving during a recession. Instead Blockbuster is limping along. The real reason for their poor performance is that they have clung to a traditional business model for too long and only attempted to jump on the bandwagon of new ideas when they had already passed them by.

I am of course talking the rise of internet television, and mail-DVD renting services, i.e. Netflix, DVD vending machines, e.g. Redbox and on Demand cable television services. Numerous other companies providing services that Blockbuster should have been in a prime position to come up with years in advance. How did Blockbuster miss all of these opportunities? Why aren't they coming up with something new/better, not just carbon copying the aformentioned other companies' ideas?

This is indicative of a wider failing of traditional industries to refuse to progress with the times, e.g. the copyright industry's unwillingness to welcome advances in technology. And the results speak for themselves.

Source

Blockbuster to close up to 960 stores

(LINK)

(*Quote from Johnny Depp)

Piracy - The Who, The How and the Y

“The average man will bristle if you say his father was dishonest, but he will brag a little if he discovers that his great-grandfather was a pirate.”(1)

For my first post I would like to shed some light on the topic of internet piracy. It is a topic that is surrounded by much controversy and misinformation and so this discussion may prove useful to people who would like to know, just how serious the "problem" of piracy is.

THE WHO

"Pirate" is a very subjective word. For some it conjurs up romantic images of adventure on the open seas, for others it means blood-thirsty criminality. The copyright industry has made very skillful use of the word in applying it to people who download music/film/tv via the internet. However, calling a teenager who sits in front of a computer and clicks on a mouse a pirate is ludicrous when you consider that an accurate definition of a pirate is "A robber on the high seas; one who by open violence takes the property of another on the high seas; especially, one who makes it his business to cruise for robbery or plunder; a freebooter on the seas; also, one who steals in a harbor"(2). The fact is that the whole copyright regime is predicated on using words in non-traditional ways. The word "theft" is another example, defined as "the felonious taking and removing of personal property"(3), and yet the copyright industry insists that theft of copyright needs neither a taking nor a removing (the original digital copy never leaves its server).

Regardless, subverting words is popular amongst lobbyists whose job it is to see that legislation enacted is favorable to their position. The system of government in the USA is designed for this to be the case. However, I would argue that the copyright industry may be going too far in their attempts to protect their rights, to the extent that blatant lies are being told.

One particular example is the recent news (LINK) from the UK that claimed 7 million British people engage in online piracy. A huge number for a country with a population of approximately 60 mllion. After an investigation by the BBC it was discovered that the 7 million figure was arrived at after relying on a previous study carried out on behalf of the British Music Industry, as well as a habit of drastically rounding up statistics. The most troubling aspect of this story is that the report was commissioned by the UK government.

So in answer to the first question, who are the pirates? They are an indeterminate number of people with internet access instead of parrots, but who do probably have scurvy from a lack of fresh fruit.

THE HOW

Internet piracy covers many acts, including but not limited to; downloading songs, downloading movies, downloading tv shows, circumventing DRM measures, uploading copyright material, etc.
As for the how? All you need is a computer, an internet connection and the ability to use a search engine.

On my own blog I give the following example:

"According to Nielsen ratings...the most popular cable television show in America is "The Closer, starring Kyra Sedgwick, with almost 7 million viewers. When you enter the search term 'watch "the closer" online free" in Google you return 963,000 hits. Clicking on some of these links will bring you to websites where full episodes have been posted by other individuals. You can watch these episodes, hosted on websites such as youtube and dailymotion, for free, without commercial breaks and whenever you choose."(4)

THE Y

I am 25 years old and so I have been lumped in with the geoup of people known as Generation Y, AKA the Millenial Generation, Generation Next and, my particular favorite, the Echo Boomers(5).

We are generally computer savvy but are more vulnerable to the present economic downturn (LINK).

Oh, and we're not actually stupid. Although the copyright industry's new approach (LINK) to the prevention of copyright theft would suggest that we had no idea that when you pay full price for an artist's album you are actually supporting them and the music that you love. Gone is the heavy hand of the copyright industry of old, the one that would have you arrested for "facilitating" the theft of copyright material(6), replaced it seems with a "oh you silly misguided fool, can't you see how your actions are hurting the ones you love?"

Of course the copyright industry has once again misrepresented the situation. Most profit is generated from ticket sales to concerts, not the sale of individual cd's (7). The copyright regime is not encouraging the creative talent of artists, instead it is devoted to ensuring massive payouts to the industry that is charged with distributing the final product (intended to recoup a cost that is now largely irrelevant since the internet makes it so much easier and cheaper to distribute digital material).

CONCLUSION

So there you have it. Internet piracy is whatever you want it to be. Provided you are the copyright industry. A true case of might makes right. It's enough to make you say "Aaargh".


Footnotes

(1) http://thinkexist.com/quotation/the_average_man_will_bristle_if_you_say_his/331231.html

(2) http://define.com/pirate

(3) http://define.com/theft

(4) http://internet-televisionlaw.blogspot.com/2009/05/conspiracy-theory.html

(5) http://en.wikipedia.org/wiki/Generation_Y

(6) http://www.zeropaid.com/news/9066/tvlinks_shut_down_owner_arrested/

(7) http://www.techdirt.com/articles/20031107/1134211_F.shtml

NOTE: My thanks go out to Stephanie for her patience while I got my act together, and for the opportunity to contribute to Our Forward Movement.

What do Girl Talk and Disney have in common?

The first time I heard Girl Talk, a mash-up musician, I instantly fell in love with the dance party inducing music, which samples everything from current top pop songs, hip-hop, 1980s pop, 1990s alternative, and classic rock – and many times, all in one song. Remixing Nirvana, Young Jeezy, Lil’ Wayne, Elton John, and Santana in one song is not atypical of Girl Talk’s music. Conveniently, my appreciation for Girl Talk also coincided with my Introduction to Intellectual Property class and copyright laws and questioning the legality. While Girl Talk may hope to avoid lawsuits through using fair use as a defense, seeing that Girl Talk didn’t get permission to sample the 300 songs in his latest “Feed the Animals” album, it comes as no surprise that NYTimes suggested that his music was a lawsuit waiting to happen.

Of course then, when my friend recently told me to watch RiP! A Remix Manifesto, a film by Brett Gaylor concerning copyright law and remixing media by focusing on Girl Talk, I was immediately enthralled. Gaylor criticizes current copyright laws for inhibiting the production of new forms of art while showing that most works are derived, sample, and reference prior art. He then criticizes Disney, who is at the forefront of promoting further restrictions on copyright laws for the protection of their works, because of their own appropriation of stories, images, and music from other works. Disney not only pushed for copyright law to extend the duration of protection, but as the film shows, has also sent numerous seize and desist letters to places such as children's nurseries for having images of Disney characters on their walls.

Days after watching RiP!, I found it extremely ironic when I read an article concerning a lawsuit against Pixar Animation Studios and Walt Disney by a Norwegian lamp maker, Luxo AS. [Bloomberg] Luxo AS brought a copyright infringement claim against Pixar for its hopping desk lamp character. Luxo AS raises a concern that a Pixar lamp packaged with a Disney DVD would confuse customers and dilute the market. While Pixar’s founder admits to have been inspired by his own Luxo lamp, it will be interesting to see how Disney and Pixar will be combating copyright infringement laws that they so adamantly encouraged and sought to enforce.

Although I'm quite positive this is only one of many of infringement suits against Disney, perhaps it'll serve as a rude awakening that the current copyright laws do not adequately protect nor promote art and creativity, which was its original purported purpose.

Music Rights & TV on DVD

Creating a quality film or television series is the same as creating a good work of art. Meticulous, pain-staking care is given to casting, writing, set décor, wardrobe, hairstyles, lighting and even the music. Some of these may matter more but in the end, the show released to the public is what you expect to see whether the program is on network television or on a DVD release.

Yet when some of these shows come onto DVD, they hit the market without original music and in some cases, the episodes aren't even the original, network presentation. Some of this can be attributed to the shows and contracts being formed at a time before the VHS/DVD market existed or had teeth. WKRP in Cincinnati is a perfect example (http://www.tvshowsondvd.com/shows/WKRP-Cincinnati/4708#News).

However, music has been cut out of recent shows as well. One case in point: My Name is Earl.

This is hardly an old debate. The website “TV Shows on DVD” (www.tvshowsondvd.com) and posters on “Home Theater Forum” (http://www.hometheaterforum.com/forum/list/51) have been discussing this almost since television shows were first released on DVD. Angry consumers have taken studios to task for music replacement issues, particularly when they had to learn about them after buying a DVD set and/or the studio labeled the release as “The Complete _____ Season”. This recent post on “The Wonder Years” features a good sum up of the issue (http://www.hometheaterforum.com/forum/thread/291386/is-the-wonder-years-that-much-of-a-risk).

Now I have a pony in this race for a few reasons: 1. My husband & I have a DVD collection that rivals many indie video stores, complete with many TV shows, 2. We've passed on quite a few shows we'd have gotten on DVD but for the butchering of music that affects the quality of the story or harms the plot and 3. My film company is working on a television show pilot so now I'm in a position to get our team to demand that their art is not butchered due to music licensing costs and the fact that new shows, especially hits, almost ALWAYS get a DVD release.

Despite all this discussion on the issue, I've not seen any lawyers jumping in. The only legal action I've seen is a general disclaimer that the consumer should expect cuts to a show; in many instances, there are none. However, as a consumer I personally feel that cutting theme songs, music integral to the plot and especially using a syndicated print is like seeing a painting of “Starry Night” with a big, blank cut out in the middle. Plenty of consumers agree, considering Variety even lashed out against CBS/Paramount for the treatment of The Fugitive Season 2 release (http://www.variety.com/article/VR1117987978.html?categoryid=16&cs=1).

Some questions to consider: Why are recent shows being subject to changes in music when they get a DVD release? Shoddy lawyering? Bad negotiators for the networks and artists?

How can the creators of shows fix these things to prevent the consumer backlash of WKRP or The Fugitive (http://www.tvshowsondvd.com/news/Site-News-Lawyers-Disclaimers-Fugitive/9860)? Some of the Home Theater Forum users practically called for Mark Heyes' head on a silver platter.

Finally, is there a viable case to be made against studios for false advertising when a show is labeled “The Complete ___ Season”, the consumer opens it, finds music edits & can't return it to the store b/c of customary store policies banning returns on opened DVDs? What about in the case of The Fugitive when consumers were suddenly treated to music edits after an earlier season had a trivial amount?

The Film Industry in the Digital Age

This is a topic that's been in the public eye ever since the rise of Napster & the Digital Millennium Copyright Act, most well known for making it a crime to tamper with industry safeguards against piracy and illegal downloading.

However, those on the indie film side have unique opportunities because of the rise of cyberspace, the Internet, social networking and all that other good stuff. A recent NY Times story even confirms this (http://www.nytimes.com/2009/08/13/business/media/13independent.html?scp=3&sq=self-distribution&st=cse).

Over at my company, one of the producers we work with has a web series entitled “The Really Cool Show”. The idea for the show was born when the two female leads, Christi Chiello and Deirdre Herlihy, appeared on a sketch for "The Ryan Balas Show" an ultra low-tech (shot on webcam) series Ryan Andrew Balas (producer of the feature film “Carter”) did for fun. They decided to create a sketch show, which blossomed into the idea of a mockumentary about three wanna-be internet celebrities who start to make a show together but end up in a romantic relationship. A threesome.

The show rose from humble beginnings. According to Ryan, “The first 5 episodes were shot on a web cam, the next 5 on a consumer grade home video camcorder. The second season was shot standard format on a Sony HDV camera and the third season was shot on a DVX 100-B. We never had an official crew until the third season. The second season was shot by anyone who wasn't acting in the scene. In the first season, we'd just put the camera on a tripod and started talking. Everything is completely improvised and the season is based on a rough outline.”

Now, the show has over 8.5 million views, provoked controversy from a religious group & has plans for a best-of DVD release. Merchandise is also available on the show's website (www.thereallycoolshow.com). Ryan says “The business structure for the show was not developed until after the majority of it's success. So we have to work backwards, and utilize new forms of self promotion and distribution, if we hope to have any monetary gain from our work. Fortunately the show has cost very little to make and we are happy to work on it for free as long as we have an audience. The show has found an international fan base (largest overseas demographic is South America) and continues to grow with each episode.”

We also had a blog post on how 50 Cent offered a new album for free, in a revolutionary move (http://onewaytv.blogspot.com/2009/06/50-cent-offers-new-album-as-free.html). We discussed amongst ourselves how such a model might work for indie filmmakers who don't have Hollywood backing. My thought was that perhaps the showing of short films, a product that has limited market value, might get the attention of an audience since they're of a shorter time span (usually about 15-20 min) and might offer that unique flavor to encourage interest in a 90-120 min film.

But what about making open source films? Apparently, this is a movement that has some teeth in other countries. I was in a business meeting for my company recently where an individual discussed having worked w/a foreign company that did such projects. Here's a link explaining the concept in more detail:(http://en.wikipedia.org/wiki/Open_source_film).

So it seems that major studios could still make a profit from their works if they use technology to their advantage. Everyone knows what happened to the music business, which sought to try holding back technology. If major studios are smart, they will look at independent companies and try to avoid repeating the mistakes of the major music labels, particularly the RIAA.

Maybe we'll see more independent films and projects acquired or backed by major studios? I'd love that, but only time will tell what technology does to the film industry model.