Copyright issues

Is what I post here protected by copyright?

Yes. It is not true that you explicitly have to register something in order for it to be protected by copyright.

A primer on copyright

Here is the really short primer on copyrights. Copyright protection requires originality and fixation in a tangible medium. "Originality" does NOT require elements of novelty, ingenuity, or esthetic merit. Originality means that the work must be individually created by the author and involve some degree of creativity - in otherwords, it can't be an exact copy of something already in existence. "Fixed in a tangible medium" means you have to be able to hold it - for example, videotapes, books, compact disks, etc.

You're right, a lot of dancing does seem to be just different ways of combining the same turns that people have been doing for years. The mere fact that the turns are done in a different order makes the dance original.

Copyrights protect the tangible medium only. Copyrights do NOT protect facts, ideas, procedures, processes, methods of operation, concepts, or principals which are embodied in the tangible medium. However choreographic works may be copyrighted and one of the protections of copyright is the exclusive right of public performance of certain types of works and this specifically includes choreographic works. [The other protections include the rights of reproduction, derivation, distribution, and display.]

There are two reasons the copyrighted choreographic work can still be performed and/or taught. First, the protections of copyrights are severable - you can waive one or more of them while retaining the others. Consider the line dance choreographer - in order for their work to become well known and for them to make money off of it, the dance has to be performed by others. The choreographer waives the exclusive right of public performance, but retains the other rights, such as the exclusive right to copy and distribute their step sheets or instructional videos (the tangible medium). The second reason is called "fair use"and works essentially the same way. Fair Use is use techincally forbidden by the law, but allowed where it is reasonable to assume that the author must have foreseen it and consented to it. Again, for a line dance choreographer, it is reasonable to assume that they intended for others to perform the dance and/or for others to teach the dance.


One last point - a copyright is valid for the life of the author plus 50 years. After that it enters the public domain.

[Chris Brinkley]

General information

Brad Templeton's "Copyright Myths FAQ: 10 big myths about copyright explained" can be found in news.announce.newusers, and at this webpage:

Another good source of information

Are dances copyrightable?

Are dance moves copyrightable?

Silly idea,not? Think again. The following is from the London Times.

      Could Dick Fosbury and others patent their sports ideas?          [Image]
                        Andrew Fordreports
      American highjumper Dick Fosbury demonstrates his unique
       flop at the 1968 Olympics: if an athlete can patent a
                   football boot, why not this?
                        Whose move is this?

Can law be kept out of sport? The issue has been raised recently by commentators in the light of the recent Ian Botham/Imran Khan circus, the European Court "Bosman" decision on transfers of players, and Diane Modahl's battle to clear her name. Sport, it seems, has now fallen into the clutches of lawyers. Indeed, a team of lawyers and arbitrators has been present throughout the Atlanta Olympics to act as troubleshooters when disputes arise.

There is nothing new about lawyers' involvement in sport. Although the prizes can be staggering, most athletes' income is derived from sponsorship and most would be unable to survive without it. Inevitably this draws in solicitors, who are involved in the negotiation and drafting of sponsorship deals and players' contracts.

Now, though, a New York lawyer has proposed radical reforms that would strengthen still further the law's grip on sport. Robert Kunstadt has published an article in the National Law Journal which throws open a whole new area for potential exploitation - "sports moves". These are the distinguishable ways in which an athlete goes about his business - Langer's inverted putting grip, rugby player Rob Andrew's "crouched" kick, or Australian cricketer Shane Warne's "flipper". He suggests that athletes can, and should, use current laws to protect innovative and creative moves through patent and/or trademark registration and via copyright. But would this apply only in America?

Mr Kunstadt's firm counts the NBA, the US Tennis Association and the US Olympic Committee among its clients. He argues that patents will apply only to new ideas which, in the fullness of time, will benefit sport. He assumes that athletes will grant non-exclusive licences to competitors (at a nominal price) and teach others how to perform the move. If an athlete can patent a revolutionary football boot (eg, Adidas's Predator, invented about two years ago by Craig Johnson, the former Australian footballer), why can't he patent a revolutionary way to jump over a bar - such as Fosbury's flop, the backwards leap made famous by the American highjumper?

For an innovation to be legally protected, it must be new, inventive and capable of industrial application. In most cases, sports moves are simply a variation on a theme and will fail on the first two counts. But what about the third - for is sport not an industry? The UK Patent Office will probably maintain that any sports move falls within the excluded category of schemes, rules or methods for playing a game.

Copyright exists in any original literary, dramatic, musical and artistic work. The Copyright Designs and Patents Act 1988 provides that dramatic work includes "dance". Sports such as ice-skating, gymnastics and, some say, wrestling are barely more than dancing. Such choreographic work could arguably be protected by copyright. So perhaps choreographed passages of play are capable of protection: could we see Spurs v Arsenal in court, should the Gunners wish to copy the now famous "Tottenham Corner" deployed regularly throughout Euro 96? And what if Cher were to release an aerobic video which materially reproduced the "moves" contained in a Jane Fonda tape?

Sports moves may also be reduced to writing, becoming original literary works capable of protection. Formula One teams compile data and details to help them to set up their cars' suspension, aerody namics and engine management systems for each circuit. If these were to fall into the hands of a competitor by dishonest means, the team might bring an action for breach of confidence, and might seek to enforce its copyright in written details. The same could apply to caddies' notebooks.

Mr Kunstadt's final suggestion relates to trademark protection. Nike products, for example, are identified by an image of the leaping Michael Jordan. Technology may present us with a situation where a product bears a moving mark. Following the Trade Mark Act 1994, marks no longer have to be static, merely capable of graphic representation. So while a moving image of, say, Jordan as a "screen saver" on computers can be an IBM trademark, this would not stop any player producing the same move on court. But Mr Kunstadt extends the principle beyond the scope of UK legislation. If Colombian goalkeeper Rene Haguita could register as a trademark his "scorpion kick" on goods sold commercially, Mr Kunstadt contends that Haguita could make a claim against, say, David Seaman should he copy the kick.

Many of the above examples, while ridiculous to sports fans, are technically arguable. But sporting bodies would undoubtedly prohibit the monopolising of a move, and Mr Kunstadt recognises this. It is unlikely that the UK Patent Office would allow the registration of sports moves. Nevertheless, copyright protection of a sequence of choreographed moves, and those reduced to writing, is possible, even though they are not "dance" or "literary". Every "intellectual property" lawyer's Holy Trinity is to "identify, protect and exploit". It may be that Mr Kunstadt has identified a new area of work. Come the Sydney 2000 Olympics, lawyers may be doing more than just troubleshooting.

Keep lawyers out of sport? It's already too late.

* The author is a member of the Intellectual Property group at City law firm Withers

This file is part of the FAQ list for the newsgroup The FAQ list is being maintained by Victor Eijkhout (victor at eijkhout dot net, talk about vanity), who appreciates being sent additions or corrections on the material in this collection. Copyright 1994/5/6/7/8/9/2000 lies with the maintainer and the contributors of various parts.

Listen up: Victor did not write most of this stuff; he just collected it. So don't send him any dance questions.

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Last modified on: Saturday, October 9, 1999.