Arka
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Upload & Sell: On
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mostlyprudent wrote:
You're getting close Arka, but still not quite getting it. Although the issues have changed as noted in my last post, Fixation is still critical to this question.
I understand what you are saying about the importance of fixation. It seems to me, however, that the federal courts haven't really spoken clearly to this issue as it pertains to photography. In Horgan v. MacMillan,, for example, the "fixation" of Ballanchine's choreography consisted of a video production of the dance, with costumes and lighting. The court left the scope of expression, as fixed in the video, to be resolved on remand... apparently the matters were never sorted out. Further, few if any courts have examined the scope of copyright in a notation fixation, rather than a video fixation.
That said, most Bharatnatyam teachers fix their choreographies via notation of the "bols" governing a dancer's steps, and sometimes through videotaping. That, to me, resolves much of the issue surrounding fixation.
Either way, I think we agree on the result; a single pose in a complex dance choreography is unlikely to be protected by copyright. While I appreciate your emphasis on the importance of fixation as a threshold, there are multiple avenues by which a choreographer may (and usually do) fix their work. I'm not saying that there aren't colorable arguments against fixation, but these facts hardly require a deep investigation of those theories.
One last comment and then I will leave this discussion. When copyright law first came into being, great effort and/or expense were required to "fix" a work. Why would anyone go to the work of writing, by hand, a novel if someone else could reproduce it and sell it as their own. So if you wanted protection of your song, oration, etc. you not only had to create/perform it, but record it. We have eliminated the work required to fix a work, and are left only with the creative process.
It seems to me that architectural changes wrought by advancing technology have made a number of activities easier, including copyright infringement.
The prevailing idea now is that copyright law attempts to balance protection/incentive for the author with the need for freedom of expression in the public domain (although courts have been running wild on the protection of authors as of late).
I tend to agree that the pendulum is swinging too far in favor of protecting right holders, rather than creating incentives for creativity or protecting free expression.
Giving someone the copyright on a dance pose would be far too restrictive to those who want to express themselves through dance. Courts have long held that food recipes are not copyrightable, for example.
That sounds like an idea/expression problem. Of course, you know the law in the area, and I think we are in agreement on how this particular issue resolves.
Arka C.
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I believe there is an organization called the Public Patent Foundation which lobbies for and funds the expensive process of re-examining previously granted patents which may have at one time existed in the public domain.
I am merely suggesting the OP obtain the proper documentation so as to have clear proof that the woman owns the copyright, instead of wasting hours and hours conjecturing as to whether the copyright is proper or even exists. There's no reason that the woman should deny disclosing this paperwork as it would only serve to strengthen her case. The Copyright Office issues a Certificate of Copyright with every Copyright issued.