Sad Keanu is Sad Because of Splash News’s Copyright Abuses

As internet memes go, Sad Keanu has been a relatively successful one. It surged onto the scene scarcely a month ago, on June 3rd, 2010, when the original poster put up the image with a caption that read: “I really enjoy acting… Because when I act, I’m not longer me.” Thanks to the mysterious forces that run the internet, the photo became destined for memedom, and rapidly gained in popularity, spawning websites, a charity called “Cheer Up Keanu,” and hundreds upon hundreds of photoshopped Sad Keanu images.

Unfortunately, two weeks later, the holder of the copyright on the photo, Splash News, decided that it had the right to put an end to the meme. They sent out a cease & desist letter to some of the meme’s promoters, and insisted that all Sad Keanu pictures be taken down. (Yeah, good luck with that, Splash.)

Hey Everyone,

Splash News has decided to keep their DMCA in place, as well as Tumblr, which means we may not publish any more of your awesome submissions and we must start to take down all of our previous 270+ posts. In addition, this blog will most likely be deleted in the next 48 hours by Tumblr because of the DMCA.

Although we do believe that it can fall under “fair use”, both myself and my partner don’t have any time or resources to fight it.

Thanks to everyone that helped out making this meme the most awesome one on the internet.

Cheers,
Dan

Because of the baseless takedown notice, sadkeanu.com was forced to take down all its Sad Keanu images, except for Sad Keanu images that have been so altered from the original image that the original photo is no longer present in a photorealistic state. (Legally, this is somewhat pointless; just because you use a Matrix-filter on the photo does not automatically make the photo un-infringing. But it seems to have satisfied Splash News, at any rate.)

The attempt to end the Sad Keanu meme through the use of a Digital Millennium Copyright Act takedown notice is wrong both from a legal perspective and from a normative one. Legally, the Sad Keanu meme is almost certainly not an unlawful infringement, as the meme is itself a parody of an unintentionally hilarious image, and, for that and various other reasons, is within the fair use exception. However, as the sadkeanu.com owners recognize, trying to fight off a baseless cease and desist letter is often far more daunting of a task than a party can feasibly attempt, and even if (when) the receive of the notice wins the case, their actual costs are still far greater than they would have been had they simply complied. So the owners of sadkeanu.com decided, as most people in this situations do, to comply with the extortion.

So even though the copyright holder has no valid legal right to order the take down of Sad Keanu, given Splash’s greater sophistication and resources, in actual practice, it is able to exercise a power over the copyrighted image that is massively broader in scope than is the actual legal right that they possess under copyright law.

Ignoring the strict merits of their case, however, Splash’s attempts to control the behavior of millions of people around the world, by preventing them from making or seeing Sad Keanus, is a perversion of copyright law. Sadly, copyright in the internet era is far too often used to stifle creativity, and to prevent the growth of user-created content. Allowing Splash Media to exercise their copyright power to end Sad Keanu does not serve a single policy interest of the United States, or the Copyright Act. None of the benefits provided by IP rights is served by this. Clearly, the total national production of paparazzi images will not be adversely affected if they are denied the ability to eliminate memes based on their photographs.

Moreover, absent the creation and perpetuation of the Sad Keanu meme, Splash News would have either no means or else very limited means of profiting from this image, once its initial run in the gossip magazines is complete. The Sad Keanu meme is not attempting to wrongfully exploit a value created by the copyright owner — rather, the Sad Keanu photo’s only source of value is the meme’s existence. In other words, if the “infringement” of the photo didn’t exist, the photo would be worthless. And if the “infringers” of the photo had been forced to pay for their use of the photo from the beginning, the meme would simply have never come to exist in the first place; people probably would’ve just gone and made some more lolcats instead.

But because the photo is now arguably famous — 99% of the credit for which can be given to the meme promoters and participants, and, at most, 1% to the copyright holder — the photo does conceivably hold some “value”, or at least it suggests there is a market for it out there, somewhere. How exactly to convert that value into a monetary return is a task to be addressed by the creative business savvy of the copyright owner — but one way that is guaranteed to not result in any profits for the owner is in sending draconian cease-and-desists to the very people who gave your product value in the first place.

This actually goes back the “fair use” factors under the Copyright Act, the last of which is the “effect of the use upon the potential market for or value of the copyrighted work.” In this case, the use of the Sad Keanu image to promote the meme actually created the potential market for the image and is responsible for the picture having a non-zero value. The takedown notice was little more than blackmail, and I hope that those who wish to parody the Sad Keanu image continue to do so, regardless of any litigation threats made my Splash Media.

-Susan

p.s. Note to Splash News: if you want to sue me for use of the Sad Keanu image above, please go ahead. I think it’d be fun

Ursula K. Le Guin and the Tragedy of the Copyright Commons

Via TechDirt, Ursula K. Le Guin has resigned from the Authors Guild in protest of their decision to no longer categorically oppose settlement with Google. The Authors Guild was an original plaintiff in the massive class action suit against Google’s book scanning project, and is now negotiating a controversial settlement agreement.

I was sad to see her take such a stance. I was never a die-hard Le Guin fan, but I have very fond memories of checking Wizard of Earthsea out for the first time from my middle school library. Her science fiction is great too, and she is undoubtedly an icon of the genre; I love the fact that, forty years after she invented the ansible, other authors still use the devices in their books, even borrowing the same technological constraints that Le Guin used, as if ansibles were somehow a common heritage of all scifi universes.

That always struck me as a small but delightful example of the benefits provided by a robust intellectual commons — that there can be such spontaneous collaborations between authors, many years apart, and that we can create these common cultural reference points. After all, Sherlock Holmes’ popularity today is not due to the fact that Sir Arthur Conan Doyle was the only one person who ever got to say what happened to him.

But some authors — or their heirs — try to claim that no morsel of their work rightfully belongs to the commons, and that their ideas should die with them. Recently, Philip K. Dick’s daughter threatened to sue Google for naming their phone Nexus One, in a subtle reference to the Nexus-6 replicants, which were a sixth generation model of androids in Do Androids Dream of Electric Sheep. I find it indescribably sad that someone should try to claim a copyright to geek cultural heritage.

As the creator of the ansible, Ursula K. Le Guin could, under her view copyright, prohibit other authors from using ansibles in their works, or else sue those authors who do reference them. I do not think anyone could argue that the world would be better off if authors could exercise such a monopoly over their ideas. But what Le Guin advocates would permit authors to do so.

In her resignation from the Authors Guild, she wrote:

You decided to deal with the devil, as it were, and have presented your arguments for doing so. I wish I could accept them. I can’t. There are principles involved, above all the whole concept of copyright; and these you have seen fit to abandon to a corporation, on their terms, without a struggle.

What “principles” are involved, in Le Guin’s view? The principle that authors are entitled to recoup all the welfare benefits from their work, into perpetuity? Because that principle has never been listed under the heading of “concept of copyright.” (You might be able to find it under “shameless rent-seeking,” though.)

The Authors Guild’s reply to Le Guin’s resignation has a quote that should be underlined, over and over again:

The lessons of recent history are clear: when digital and online technologies meet traditional media, traditional media generally wind up gutted. Constructive engagement — in this case turning Google’s infringement to our advantage — is sometimes the only realistic solution.

Admittedly, for most industries, it seems that “constructive engagement” has meant lobbying the legislature (or in the Google Books case, the judiciary) for restrictive laws that give creators ridiculous rights that copyright was never intended to protect. Even still, engaging in the opportunities that change provides is always a better response than claiming an entitlement to continue living in The World As It Used To Be.

I do have some pretty huge objections to the Google settlement (who doesn’t?), but they are the same objections the DOJ has, i.e., “class action, copyright and antitrust law[.]” (Okay fine, my personal objections include just those last two. Although if I had any modicum interest in class action suits, I’m sure I’d be very concerned about that first one as well.)

Le Guin’s objections to the Google settlement, however, are not about the creation of an unjustified monopoly power, but rather that she is not going to be the beneficiary of one.

-Susan

American States Purposefully Claim Copyright In Their Own Laws, Demand That Citizens Pay If They Want To See Them

I realized that my last post may have been overly unfair to Liberia, and may have implied that an entity claiming copyright in a state’s legislation was an unusual occurrence.

It’s not. Numerous sub-Federal government bodies in the U.S. (and Canada) have attempted to do exactly the same. (Feds are prohibited from claiming any copyright under Sec. 105 of the Copyright Act.) California, for instance, claimed copyright in its “building codes, plumbing standards and criminal laws”, and charged users to obtain copies of the statutes and regulations they are already presumed under the law to have knowledge of. And it’s pretty clear why states do it: there’s money to be made.

To purchase a digital copy of the California code costs $1,556, or $2,315 for a printed version. The state generates about $880,000 annually by selling its laws, according to the California Office of Administrative Law.

Oregon also tried the same copyright-in-the-compilation trick that Banks is doing in Liberia:

The State of Oregon takes exception to Web sites that republish the state’s Revised Statutes in full, claiming that the statutes contain copyrighted information in the republication causes the state to lose money it needs to continue putting out the official version of the statutes. Oregon’s Legislative Counsel, Dexter Johnson, has therefore requested that legal information site Justia remove the information or (preferably) take out a paid license from the state. …

While the text of the law is not copyrighted, the “arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and other such incidents” are under copyright.

Luckily, the judiciary has, so far, not looked on to such claims too kindly. Recently, California got its rear end handed to them over its attempt to claim copyright in public maps.

A California county’s three-year battle to prevent a nonprofit group from obtaining public mapping data has ended disastrously for the county after it was ordered by a court to pay the group $500,000 in legal costs.

Last February, Santa Clara County, the heart of California’s Silicon Valley, was ordered to hand over the public records to the California First Amendment Coalition for a minimal duplication fee after initially trying to charge $250,000 for the data and then appealing to the federal government to designate the data a national security secret that couldn’t be released. This week the county paid out to the coalition twice the amount in legal fees that it had once hoped to rake in as profit for the data.

With the release of the exciting (if kinda unwieldy) addition to Google Scholar that allows you to search full federal and state court opinions as well as law journals, ever more “public information” is being made, for the first time, actually available to the public. Meanwhile, I’ll be cheering on the development of Law.Gov. Sorry, Wexis — I loved the freebies you gave me in law school, but it’s time for you to take a less prominent position in the U.S. legal system:

Law.Gov is a movement that is determined to work to raise the quality of government information. They are determined to establish standards for state and local courts, legislatures and agencies to follow in the production and distribution of their own legal materials.

If Law.Gov succeeds in its mission, it will mean that governments and courts will produce better information, in formats that are reliable, accurate and distributed freely to all who need it. And all who need it include both private citizens and providers of VHPPLM [Very Highly Priced Primary Legal Material]. As such, this is good for news for providers of VHPPLM, as well as ordinary consumers of primary legal materials.

-Susan

Liberia Accidentally Privatizes the Law, Owner Demands that the Government Pay for the Copyright if it Wants it Back

The Republic of Liberia’s laws have been, quite literally, lost. Due to civil war, the actual content of the country’s legislation were scattered and misplaced, and not even the Legislature has a complete collection of the law.

The chairman of the Liberian law reform commission has, however, finally assembled all of Liberia’s laws into one compilation — and he is claiming an exclusive copyright in the compilation. And he’s refusing to hand over the law until someone coughs up a sufficiently high enough sum:

[Philip] Banks sees the copyright as an altogether different tool. “These are resources that you’ve had to expend in putting all of this together, and the question is, should you be compensated? I hold the view that you should,” he asserted in his interview with FP. “And for folks that have said, no you shouldn’t, I’ve said to them, go and get your loose-leaf.”

I’m not sure why this situation is being treated as so self-evidently ridiculous. Not that I agree with his claims in the slightest, but it’s not any more absurd than a lot of the parodies of copyright claims that happen in the U.S. And to be fair to Banks, the compilation (which was begun by a U.S. professor) likely would not exist in its completed form if not for his efforts. Is there a meaningful difference between what Banks is doing and between municipal governments in the U.S. claiming a copyright in their train schedules?

However, in contrast to when such situations occur in the U.S., the FP article, and most the other commentary up, is perfectly willing to describe what Banks is doing as “taking the law hostage” and “ridiculous,” and no commentators seem inclined to accept that he has any moral rights to the data. (Whether or not he has a legal claim to the data is, for obvious reasons, rather a more difficult question.)

One thing the Foreign Policy article does not make clear (possibly because there’s no way to do so) is whether anyone in Liberia is making a distinction between copyright in the laws themselves and a copyright in the collection of the laws. Presumably, Banks can only claim the second. According to the article, “The U.S. Agency for International Development estimates that $13 million is poured into rule-of-law assistance programs in Liberia each year.” Maybe instead of pumping in millions, US AID should just go buy a copy of the laws from Banks, rearrange the compilation order, maybe add in some independent research for good measure, and then start releasing its own collection of Liberian laws under some kind of Liberian Creative Commons arrangement. It would be a cheaper way of drastically improving the rule of law in Liberia.

Or, on the other hand, why hasn’t the Liberian government just gone ahead and passed a law that clarifies that “Copyright protections are not available in any form of legislative document or compilation thereof”? Liberia’s constitution, modeled after the U.S.’s, does have prohibitions on bills of attainder and ex post facto laws, but if those clauses apply in a similar fashion to the U.S. counterparts, they would not actually prohibit the Liberian government from declaring that its copyright statutes do not apply to Liberian laws themselves. However, according to the FP article,

President Johnson Sirleaf said in an Oct. 12 interview that she is willing to entertain compensation for “whatever they may have spent out of their own resources,” but insists, “Rightfully, those copyrights belong to the government.” She hopes to have the situation sorted “within a year.”

So apparently the Liberian government is, myopically, trying to claim that they have a copyright in the laws. Which is ridiculous of them, and undermines their own cause. If the government can have a copyright in legislation, there is no principled reason (assuming Liberian law recognizes copyrights in compilations) why Banks should not be able to copyright his laboriously collected volumes of them.

In which case, I suppose, why not just go ahead and invoke constitutional prohibitions against Banks? That could be the Liberian government’s handiest solution. Under Article 15(c) of the 1984 Liberian Constitution, “there shall be no limitation on the public right to be informed about the government and its functionaries.” Allowing the Minister of Justice to keep the country’s laws secret sounds like a limitation to me.

So I’m assuming there’s something either more corrupt or more complicated going on here than the FP article suggests. Otherwise, it just doesn’t make much sense.

-Susan

Under Copyright Law’s Fedora: Paul Zukofsky’s Copyright Notice as Critical Commentary

Paul Zukofsky, the son of poets Louis and Celia Zukofsky, has published an amazing Copyright Notice, in which he threatens to bring down a storm of litigation on anyone who dares to quote his parents without paying him the required fee. Describing his letter as “an obvious ‘do not trespass’ sign,” he says:

Despite what you may have been told, you may not use LZ’s words as you see fit, as if you owned them, while you hide behind the rubric of ‘fair use’. ‘Fair use’ is a very-broadly defined doctrine, of which I take a very narrow interpretation, and I expect my views to be respected. We can therefore either more or less amicably work out the fees that I demand; you can remove all quotation; or we can turn the matter over to lawyers, this last solution being the worst of the three, but one which I will use if I need to enforce my rights.

PZ may “expect [his] views to be respected,” but his expectations are not exactly the sort that are legally protected. Essentially, PZ is making a threat that either you do not use the work or pay him if you do, or else he will pursue you with vicious, expensive litigation that, while is unlikely to succeed on the merits, will bankrupt any grad student long before the merits could be reached.

This not an idle threat. Glancing around, I found a few examples of where scholarly commentary on Louis Zukofsky has been removed due to legally dubious copyright infringement claims made by PZ. He seems intent on making good on the threat contained in his Copyright Notice:

“In general, as a matter of principle, and for your own well-being, I urge you to not work on Louis Zukofsky, and prefer that you do not. Working on LZ will be far more trouble than it is worth.”

Despite P. Zukofsky’s assertions that his motivations are “almost purely economic,” and that he is merely protecting his financial interest when he “insist[s] on deriving income from that property,” I suspect money is not the true issue. First, it is quite obvious that the stance PZ is taking will lead to less income from the copyrights he now holds. By forbidding any substantive commentary on his parents, he is ensuring that their works will rush prematurely headlong into a grave of literary obscurity — as with no one talking about their poetry or discussing their works, there are no new potential fans to become intrigued enough to purchase a copy of the Zukofskys’ works for their own.

But second, and more importantly, the “Copyright Notice” is not at all some dry and dour admonishment, written in legalese, as you would expect with a true peremptory cease & desist notice, but rather it is a self-aware “irascible [and] recalcitrant” rant. It reveals too much about the author himself, such as his apparent daddy issues, (“I hardly give a damn what is said about my father (I am far more protective of my mother)”), to not have been intended as a form of literary speech in itself, separate from any legal warning it may also convey. This becomes most obvious in the following paragraph from the Notice, in which PZ mocks the uselessness of grad students and their dissertations on poetry:

I can perhaps understand your misguided interest in literature, music, art, etc. I would be suspicious of your interest in Louis Zukofsky, but might eventually accept it. I can applaud your desire to obtain a job, any job, although why in your chosen so-called profession is quite beyond me; but one line you may not cross i.e. never never ever tell me that your work is to be valued by me because it promotes my father. Doing that will earn my life-long permanent enmity. Your self-interest(s) I may understand, perhaps even agree with; but beyond that, in the words of e.e.cummings quoting Olaf: “there is some s[hit] I will not eat”.

e.e.cummings is, of course, still under copyright, and by all indications, PZ is not nearly so dense as to be oblivious to the irony of quoting another poet, in a diatribe about how no one should ever quote the Zukofskys. The use of the copyrighted quotation was almost certainly a deliberate act by PZ. Moreover, Louis Zukofsky himself wrote many volumes of critical commentary– the “so-called profession” PZ refers to with scorn is his father’s own profession — and many of the copyrights that PZ is trying to protect are themselves volumes of poetry criticism. So I do not believe that PZ could have been less than fully aware that his actions are an abuse of copyright, and contrary to his own father’s feelings on poetry.

Instead, PZ’s Copyright Notice is itself a form of literary criticism, a piece of scholarship about the Zukofskys’ works — albeit one that is, unfortunately, backed with the color of law.

Paul Zukofsky is brilliant and accomplished in his own right, and I actually cannot find it in me to condemn his instinct to protect and control the literary works of his parents. It is the asinine structure of our copyright laws that is to blame, for giving PZ the power to wield the American legal system against scholarship he dislikes, and to shut down any criticisms or homages of his parents that he disagrees with. Copyright’s only true purpose is to provide incentives for future creators — instead, perversely, under our laws today, copyright’s purpose has become to serve whatever whims the copyright holder might have, even if that whim is to have a poet’s work never be discussed again.

-Susan

p.s. If you want to at least listen to P. Zukofsky’s works, a bunch are available online here.

p.p.s.: Or read LZ’s Poetry/For My Son When He Can Read. The closing paragraph takes on a new meaning in light of Paul Zukofsky’s attempts to prevent others from finding new meaning in LZ’s own poetry:

“Writing this Paul, for a time when you can read, I do not presume that you will read ‘me.’ That ‘me’ will be lost today when he says good night on your third birthday, and not missed tomorrow when he says good morning as you begin your fourth year. It took all human time to nurse those greetings. And how else can the poet speak them but as a poet.”

Michelle Obama Doll Wears Designer Label Knock Offs

Because clothes are ‘useful articles,’ strong copyright protections are not available to fashion designers. Essentially, so long as parts that are trademarked are not copied as well, cheap clothing retail stores can go on making knock offs of designer labels all they want. And by my reckoning, that’s as it should be — I don’t think the case can be made that we suffer from a shortage of designer label fashion lines, given how every celebrity and their dog have one, so there are no welfare gains to be had from allowing fashion to be copyrighted.

But over at Counterfeit Chic, there’s an interesting suggestion made that, even if you can’t infringe a copyright by making a knock off of a dress, making that same dress for a doll might be infringing.

MichelleObama_dolls_ChiTrib_10-14-09

These Michelle Obama dolls ‘action figures’ feature dress designs of some apparently well known labels:

And what of the designers whose dresses have made fashion history? Paradoxically, if Feinberg had reproduced the dresses themselves and sold them in a Brooklyn boutique, their original designers would have had little or no claim under U.S. law. However, the same may not be true of the 6-inch versions.

Let’s consider each dress individually. Apart from the purple Pinto, which is probably too simple to trigger any sort of protection (belt sold separately), the doll-maker may run a slight risk of playing (court)house with his creations. Either Donna Ricco herself or whoever created the black-and-white fabric pattern might have a copyright claim, depending on how closely Feinberg copied the print. And if either Narciso or Donna created a sketch of his or her respective dress before stitching it, the drawing (though not the dress) would be subject to copyright — making the doll theoretically an infringing derivative work.

As Counterfeit Chic points out, this raises another problem. An infringement claim requires proof of copying — but the copying here would almost certainly have been of Michelle Obama’s actual dresses, not the copyrightable sketches. Proof of copying can also be shown by demonstrating that the alleged infringer had access to the original work and substantial similarity, but would a copy of a non-copyrightable item that is itself a non-infringing depiction of a copyrightable work count as access?

-Susan

The King Is Still Alive, and I Want To Copyright It

From the Frequently Asked Questions page of the U.S. Copyright Office’s website:

How do I protect my sighting of Elvis?
Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. File your claim to copyright online by means of the electronic Copyright Office (eCO). Pay the fee online and attach a copy of your photo. Or, go to the Copyright Office website, fill in Form CO, print it, and mail it together with your photo and fee. For more information on registration a copyright, see SL-35. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph.

How many times exactly has this question been asked for it to qualify as “frequent”?

-Susan

So what’s the IP value of a metro schedule?

The Washington Metropolitan Area Transit Authority is being short sighted in its refusal to make its metro scheduling data free for use. Trying to score a few dollars in ad revenue by losing an opportunity increase the value of their product to consumers? Not the best business strategy. And although bit by bit they’ve been conceding some ground on the issue, they seem set on maintaining control of their transit data for now.

In comparison, the Obama administration appears to be on the right path: http://www.data.gov/. Okay, admittedly, it’s a bit easier for the federal government to take such a step than it is for state level transport agency to do so, as under 17 USC § 105.59 “Copyright protection … is not available for any work of the United States Government.”

(Edited to add: For the record, WMATA is not a federal agency. )

The D.C. government is already on board with governance in the age of wikipedia, with programs like Apps for Democracy and publishing DC city operational databases online.

So what’s the deal with the Metro, then? Why aren’t they trying to encourage this sort of user-driven expansion of their services?

As a policy matter, Metro and other transit agencies should be taking the open source route. There are hundreds of public transport applications out there. The market has shown that it will happily provide them. And this is a best case scenario for consumers — google around until you find an app with good reviews, and spend a few bucks on it.

Refusing to hand the transit data out or giving exclusive monopoly rights to any single company for distribution is 1) unnecessary, as this product is being supplied on the market already, and 2) is also extremely unlikely to result in a better quality service, as the ones out there already appear to be doing a good job. Not to mention, it is obvious that WMATA is never going to get paid for it.

But even if it’s a bad policy, that doesn’t mean they don’t have the legal ability to claim exclusive rights to it.

As every good little law student knows, you can’t copyright a fact. Feist Publications, Co. v. Rural Tel. Serv. Co., 499 U.S. 340 (1922). This isn’t just under the Copyright Act, it’s a constitutionally mandated requirement, under Article I, 8, cl. 8. Congress can only give IP protections where there has been “independent creation” + “modicrum of creativity.”

So can you copyright public transit data or not? Well, that depends — there are a lot of different questions going on here.

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If you liked it then you should have put a © on it.

According to reputable sources, Beyoncé had one of the best videos of all time. It’s also been well publicized that parts of the dance routine used in Beyoncé’s video were, shall we say, heavily influenced by a 1960′s dance routine choreographed by Bob Fosse and performed by Gwen Verdon, called “Mexican Breakfast.”

Here is the Beyoncé video:

Below is the original Fosse routine, set to Single Ladies:

But I realized after seeing some articles on Beyonce’s rip off that I had no idea if there would even be anything legally actionable about it. I got curious enough to take a look, and it turns out choreography can in fact be copyrighted, under the Copyright Act of 1976, which provides, in part:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: … (4) pantomimes and choreographic works … .
17 U.S.C.A. 102(a)(4).

Dance routines are most commonly “fixed in any tangible medium” via video recording or labanotation. Mexican Breakfast does have a fixed video recording, but it could also be recorded in written form through the extremely complicated method of recording choreography known as labanotation, that marks the positions of the body through each move of a dance routine. So by today’s standards, a copyright could easily be obtained here.

That would not have been the case when Mexican Breakfast was first performed. In 1909, dance was not copyrightable, as it did not qualify as “useful” by Congress’ definition. In 1947, this changed, slightly, but only dances that conveyed a narrative qualified. It was only with the 1976 act that abstract moves — like Mexican Breakfast — obtained any protection all. Even with the expanded protection, however, actions for infringement of choreography remain extremely rare, and there are only a small handful of previous cases to go by.

Beyoncé is no stranger to infringement suits, but despite diligent googling, I was unable to come up with any information on whether there’s been any legal wrangling over Single Ladies. It doesn’t look as if there are any suits underway, and in any event its not clear that Beyoncé’s routine was an infringement of Mexican Breakfast — while there are obvious influences in Single Ladies, it might not rise to the level of substantial similarity. I don’t have any background in dance, and so won’t even try to speak to the number and nature of the similarities between the two routines; it’s hard for me to say if Single Ladies appropriates the heart of the Bob Fosse routine, or if it’s more of a reference than a rip off.

Anyway, it looks like someone cares enough about the copyright in the Mexican Breakfast to be protecting their interest in the video, even if not the routine itself– I tried and failed to find a copy of the original dance from The Ed Sullivan Show, as someone’s been yanking copies of it off the ‘nets.

And while I’m not convinced there are any net economic gains to be had from allowing copyright protection for dance moves — and the dearth of suits in this area would suggest there’s not much profit to be had in it even for choreographers — at least its not nearly as silly as allowing IP protection for yoga and sports moves.

-Susan

UPDATE: I wish I’d found this blog post sooner. On how and why copyright is not heavily utilized for dance:

Only 1,115 registered dramatic works, choreography, and pantomimes were transferred to the Library.

This very low figure corresponds to the legal literature on copyright and choreography, which repeatedly notes choreographers’ decision not to rely on copyright and to instead develop their own “community” system of protection, protection believed to be better suited to choreography and providing better protection. The community system works in large part because of the concentration of choreographers in New York City, the tight-knit nature of dance companies, and the reputation within the community enjoyed by choreographers.