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”?


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: 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.


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.