Bill Grae
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Long post alert. CAUTION. First, however, a disclaimer:
Please note that none of the following is intended as legal advice, especially since I have no idea in what jurisdiction (or country, even) this interesting question arises, and I am only admitted in New York and New Jersey and several District Courts in the Second and Third (federal) Circuits. This post is especially NOT intended to establish any sort of attorney-client relationship, and is offered here, SOLELY, to foster on-going discussion on this topic.
Assuming we're talking about U.S. copyright law, however, here's my take on things:
Based on my research, the bottom line seems to be that the dance instructor in question could actually be correct about her right to claim to own the copyright t a particular dance pose, but probably is not. Answering this question, however, requires more information. For example, is there anything about the particular pose that makes it a unique expression of an idea, as opposed to a “standard pose”? Whereas a sequence of moves quite easily can be construed as an expression of an idea, rather than an idea in and of itself, a single static pose of an individual dancer (absent unique costume, setting, or musical accompaniment) hardly seems the sort of unique expression that courts will grant protection.
A “dance” or choreographed work, is potentially subject to copyright protection. E.g., Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 374 F. Supp. 2d 355 (S.D.N.Y. 2005). Similarly, based on federal court decisions dating back to at least 1884, “[p]hotographs may be protected under copyright law based on the expression of the artist's originality, such as his choice of composition, lighting, shading, camera angle, background, perspective, selection of film and camera, and the expression elicited from the subjects.” For what it’s worth, even legal works - such as contracts or software end-user agreements - can be subject to copyright, though legal opinions or judicial decisions are not. That’s why I can quote above, from the word “photographs” through “subject”, without worrying about U.S. District Court Judge Matthew W. Kennelly, of the Northern District of Illinois, suing me, for grabbing language from his opinion in Bryant v. Gordon, 483 F. Supp. 2d 605, 614-616 (N.D. Ill. 2007).
In Bryant, a photographer sued for damages after he sold photographs of military snipers in Ghillie suits to a producer of “military motivational materials.” The photographs were incorporated into posters, coffee mugs, and the like, with slogans. When the first purchaser went bankrupt, its assets were purchased by a second similar enterprise. When ths purchaser began to run low on inventory , he hired a new photographer to take new shots of individuals in a pose and attire similar to the snipers in the shots originally taken and sold by plaintiff. In the subsequent law suit, the photographer (the first one) contended that the new work infringed his copyright, in part, because the new photographs used the same poses.
The court’s ultimate decision involved a number of different issues beyond the fairly narrow issue of whether a “pose” is itself copyrightable. The easily-framed issue actually offers a really fascinating entry into a number of different doctrines of copyright law. The court noted:
In some cases, the contrived positioning of a subject has been protected, but in other cases, poses have not been considered to be copyrightable elements because they are inherent in the subject matter or are otherwise unorginal. See, e.g., Gentieu v. Tony Stone Images/Chicago, Inc., 255 F. Supp. 2d 838, 847 (N.D. Ill. 2003) (finding that photographer could not establish infringement claim because the poses and images flowed necessarily from the subject matter of naked babies and therefore were not original).
Defendants rely on Gentieu to argue that the pose of the sniper team in the Bryant photo is not a protectible element of the image and therefore must be dissected out and disregarded for the copyrightability analysis. In Gentieu, the photographer urged copyright protection in the image of naked babies against a white background. Gentieu, 255 F. Supp. 2d at 844. There, the court found that a baby's smile or a baby putting its arms up was inseparable from the unprotectible idea of a baby photograph. Id. The court concluded that such poses are "standard" reactions found naturally in babies and therefore cannot be monopolized by the copyright holder. Id. at 849. Because a naked baby smiling or holding its arms up can be expressed only in a limited number of ways, the scope of copyright protection is necessarily narrower. Id. at 849-50.
In this regard, defendants appear to rely on what has come to be known as the scenes a faire doctrine, though defendants do not use that term. Under this doctrine, incidents, characters, or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic are not protectible by copyright.
As defendants argue and as Bryant acknowledges, Bryant cannot claim copyright protection in the idea or concept of his subject matter, a two-person sniper team in Ghillie suits, in the prone position, sighting a target. Indeed, that particular standard "pose" is precluded from copyright protection under the scenes a faire doctrine. Bryant contends, however, that he is claiming protection only of his expression of that idea. He argues that the Urtis photo uses all the relevant components from the Bryant photo -- subject matter, composition, camera angle, lighting, and perspective -- and essentially duplicates most, if not all, the compositional elements contained in that photo.
In contrast to the stark background and composition in Gentieu, Bryant's composition has some original elements, based on his choice of angle, perspective, lighting, and the expression of the subjects. These choices constitute original elements. None of the particular compositional elements of the Bryant photo as it is expressed necessarily flows from, nor is required by, the idea of capturing a sniper team in prone position dressed in Ghillie suits. In other words, a wide range of possibilities are available to a photographer when choosing to depict a sniper team in that position. Indeed, both Bryant and Urtis have submitted several photos taken by Urtis depicting sniper teams from different angles and perspectives.
Bryant v. Gordon, 483 F. Supp. 2d 605, 614-616 (N.D. Ill. 2007)
The Copyright Act expressly provides in pertinent part that: “n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 U.S.C. §§ 102(b). Thus, a copyright protects only the expression of ideas, not the ideas themselves. See Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 507 (7th Cir. 1994).
Given the rationale of promoting the arts that underlies copyright law, courts furthermore have the obligation and discretion to interpret copyright narrowly to avoid granting an effective monopoly over an idea where the idea in question can only be expressed in a limited number of ways.
I agree, by the way, that a practical response is often the optimum means of resolving this sort of potential dispute. "O.k., you say you have a copyright, you 'bout licensing me to shoot this pose, and I'll make sure to credit you when I post the shot on my web site?" I would be interest, as well, in whether or not the studen realized that her dancing and other activities during the course of instruction were subject to her instructor's copyright - after all, the dancer's performance is, absolutely, a "unique expression" protected by copyright.
Great question!
Edited on Aug 22, 2008 at 07:02 PM
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