User:Yellowdesk/copyright

A survey of the history of Copyright law: http://home.att.net/~jbaugher5/copyright.htm William Patry: [http://williampatry.blogspot.com/
 * The Patry Copyright Blog] RSS Feed: [feed://feeds.feedburner.com/ThePatryCopyrightBlog

Andrew Beckerman-Rodau Protection of Intellectual Property -- Patent, Copyright, and Trade Secret Law in the United States and Abroad
 * 10 North Carolina Journal of International Law & Commercial Regulation 537 (1985)

A PAS DE DEUX FOR CHOREOGRAPHY AND COPYRIGHT BY JOI MICHELLE LAKES* 

Joan E. FitzGerald, Copyright and Choreography CORD News, Vol. 5, No. 2 (Jul., 1973), pp. 25-42 JSTOR: doi:10.2307/1477673

Julie Van Camp: Copyright of Choreographic Works 1994-95 Entertainment, Publishing and the Arts Handbook, edited by Stephen F. Breimer, Robert Thorne, and John David Viera (New York: Clark, Boardman, and Callaghan) 1994 (pp. 59-92) Link

Footnote: (78) Interpretive elements were given protection, so long as they had been written down, in a case granting an injunction against a pantomimed scene of a play. "Movement, gesture, and facial expression, which addresses the eye only, are as much a part of the dramatic composition as is the spoken language which addresses the ear only; and that part of the written composition which gives direction for the movement and gesture, is as much a part of the composition, and protected by the copyright, as is the language prescribed to be uttered by the characters." Daly v. Palmer, 6 F.Cas. 1132, 1137 (C.C.S.D.N.Y. 1868) (No. 3,552). The pantomimed scene in Daly v. Palmer was the subject of two other cases, which reached the same result. Daly v. Webster, 56 F. 483 (2d Cir. 1892); Brady v. Daly, 83 F. 1007 (2d Cir. 1892), aff'd, 175 U.S. 148 (1899). Loie Fuller attempted to rely on this case as precedent, but was denied on the grounds that her Serpentine Dance did not tell a story. See Note 2, above; see also, Freedman, "Is Choreography Copyrightable?" 83-84.

Footnote: 110) Martinetti v. Maguire, 16 F.Cas. 920, 920 (C.C.Cal. 1867) (No. 9,173). For a detailed description of this work, see Donald Saddler, "The Black Crook," Dance [Periodical, East Stroudsburg, PA] (October 1941), 17, 23-24. For a discussion of the concerns of the public over the "immorality" of the work, see Anatole Chujoy, "It Can't Happen Now!" Dance [Periodical, East Stroudsburg, PA] (January 1937), 7, 31. /p. 86

Martinetti v. Maguire, 16 F.Cas. 920 (C.C.Cal. 1867) (No. 9,173)

(copyright protection denied to Black Crook as immoral)

cite in van Camp: "Freedman, Robert, 'Is Choreography Copyrightable?: A Study of the American and English Legal Interpretations of 'Drama,'' Duquesne University Law Review 2 (1963): 77-95."

Cite to ballet case: Martinetti v. Maguire, 1 Abbott 356, 16 F. Cas. 920, No. 9173 (C.C.D. Cal. 1867) Martinetti v. Maguire, 1 Abbott 356, 16 F. Cas. 920, No. 9173 (C.C.D. Cal. 1867)

1. Martinetti v. Maguire (1867), 16 F. Cas. 161 (C.C. Cal.). The Black Crook is a mere spectacle; in the language of the craft, a “spectacular piece.” It has no pretensions to be called a dramatic composition. The dialogue is very scant, and appears in the light of a mere accessory — a piece of word machinery tacked on to the ballets and tableaux. The principal part and attraction of the spectacle seems to be the exhibition of women in novel dress or undress, or in striking attitudes or action. The closing scene is called “Paradise” and consists, as witness Hamilton expresses it, “of women lying about loose” — a sort of Mohammedan paradise, I take it, with imitation grottos and earthly houris. To call such a spectacle a “dramatic composition” is an abuse of language. An exhibition of model artistes, or a menagerie of wild beasts, might as well be called a dramatic composition, and claim to be entitled to copyright. A menagerie is an interesting spectacle, and so this may be; but it is nothing more. An exhibition of women, whether in the ballet or tableaux, or even “lying round loose” in such a paradise, is not a dramatic composition and entitled to the benefit and protection of copyright. [at p. 162]

from the same case:

a dramatic composition which is grossly indecent, and calculated to corrupt the morals of the people. The exhibition of such a drama neither "'promotes the progress of science or useful arts," but the contrary. The constitution does not authorize the protection of such productions, and it is not to be presumed that congress intended to go beyond its power in this respect to secure their "authors and inventors the exclusive right" to the use of them [at xxx]

from the same case: This power is given, not generally, but only as a means to this particular end, "to promote the progress of science and useful arts;" and hence it expressly appears that Congress is not empowered by the Constitution to pass laws for the protection or benefit of authors and inventors except as a means to "promote science and useful arts". Martinetti v. Maguire, C.C.Cal.1867, 16 F.Cas. 920, No. 9173.

Fuller v. Bemis, 50 F. 926, Lacombe J. (S.D.N.Y. 1892).

2. Fuller v. Bemis, 50 F. 926, Lacombe J. (S.D.N.Y. 1892). It is essential to such a composition that it should tell some story. The plot may be simple. It may be but the narrative or representation of a single transaction; but it must repeat or mimic some action, or speech, emotion, passion, or character, real or imaginary. And when it does, it is the ideas thus expressed which become subject of copyright. An examination of complainant’s dance, as filed for copyright, shows that the end sought for and accomplished was solely the devising of a series of graceful movements, combined with an attractive arrangement of drapery, lights, and shadows, telling no story, portraying no character, depicting no emotion. The merely mechanical movements by which effects are produced on the stage are not subjects of copyright where they convey no ideas whose arrangement makes up a dramatic composition. Surely those described and practised here convey, and were devised to convey, to the spectator, no other idea than a comely woman is illustrating the poetry of motion in a singularly graceful fashion. Such an idea may be pleasing, but it can hardly be called dramatic. [at p. 929]

Horgan v. MacMillan Inc., 789 F. 2d 157, Feinberg J. (2nd Cir. 1986). . Choreography was not mentioned in the prior law, the 1909 Copyright Act, 61 Stat. 652, and could only be registered, pursuant to regulations issued under that law, as a species of “dramatic composition.” Dance was protectable only if it told a story, developed or characterized an emotion, or otherwise conveyed a dramatic concept or idea. ... The rights of choreographer in his work were not clearly defined, in part because the means for reducing choreography to tangible form had become readily available only comparatively recently ... and in part because of resistance to the acceptance of abstract, non-literary dance as a worthy form of artistic expression. [at p. 160]

Table of US cases from: SOME COMMENTS ON CHOREOGRAPHIC WORKS AS NEWLY DEFINED IN THE CANADIAN COPYRIGHT ACT by Laurent Carrière* and LEGER ROBIC RICHARD, Lawyers, 1. Martinetti v. Maguire, 16 F. Cas. 161 (C.C. Cal. 1867). 2. Fuller v. Bemis, 50 F. 926 (S.D.N.Y. 1892). 3. Barnes v. Miner, 122 Fed. 480 (C.C.S.D.N.Y. 1903). 4. Savage v. Hoffmann, 159 F. 584 (C.C.N.Y. 1908). 5. Dane v. M. & H. Co., 136 U.S.P.Q. 426 (N.Y. Sup. Ct. 1963). 6. Horgan v. MacMillan Inc., 227 U.S.P.Q. 975 (S.D.N.Y. 1985); rev’d 229 U.S.P.Q. 684 (2nd Cir. 1986). 7. Edwards v. Ruffiner, 229 U.S.P.Q. 157 (S.D.N.Y. 1985). 8. Anderson v. M & T Pretzel Inc., 46 U.S.P.Q. (2d) 1094 (S.D.N.Y. 1997).

National Portrait Gallery copyright conflicts ‎
In July 2009, lawyers representing the National Portrait Gallery of London (NPG) sent a demand letter threatening possible legal action for alleged copyright infringement, to an editor-user of the free content multimedia repository Wikimedia Commons, a project of the Wikimedia Foundation. The letter claims that Wikipedia editor, Derrick Coetzee, obtained more than 3,000 high-resolution images from the British National Portrait Gallery in March 2009 and posted them on Wikipedia Commons.

The NPG letter stated the claim that while the painted portraits may be old (and have thus fallen into the public domain), the high-quality photographic reproductions are recent works, and qualify as works protected under copyright due to the amount of work it took to digitize and restore them, that the action of uploading the images infringed on both the NPG's database rights and copyrights, and that the images were obtained through the circumvention of technical measures used to protect the prints. The NPG also stated that the public availability of the images would affect revenue acquired from licensing the images to third parties, revenue also used to fund the project of digitizing their collection, an effort that the NPG claims cost the organization over one million pounds. The NPG had requested a response by July 20, 2009 from Mr. Coetzee, and also requested that the images be removed from the site, but noted that the NPG was not considering any legal action against the Wikimedia Foundation. The NPG announced that Mr. Coetzee had responded via his legal representative by the requested deadline. Mr. Coetzee's legal representation is provided by the Electronic Frontier Foundation.

Mr. Coetzee publicly posted a copy of the legal letter from the NPG, indicating that he desired to "enable public discourse on the issue". On July 17, 2009, NPG gallery spokesperson, Eleanor Macnair, stated that “contact has now been made” with the Wikimedia Foundation and “we remain hopeful that a dialogue will be possible.” The NPG has stated that it would be willing to permit Wikipedia to use low-resolution images, and that it hoped to avoid taking any further legal action. The NPG had previously attempted to contact the Wikimedia Foundation in April 2009 regarding this issue, but did not receive an immediate response.

The British Association of Picture Libraries and Agencies (BAPLA) has expressed support for the gallery.

Background
The United States District Court case Bridgeman Art Library v. Corel Corp. (in which Bridgeman Art Library sued the Corel Corporation for copyright infringement for distributing copies of digital reproductions of public domain paintings sourced from Bridgeman on a CD-ROM) established that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original." As a result, reproductions of works that have fallen into the public domain cannot attract any new copyright in the United States. As such, local policies of the Wikimedia Commons web site ignore any potential copyright that could subsist in reproductions of public domain works. In the United Kingdom, cases have gone in both directions. Lord Oliver's dicta in Interlego held that the effort of copying, itself, does not constitute originality, while in Walter v Lane, a newspaper was successfully able to claim copyright over a fixation of a speech given in public due to the skill and labour needed in its reproduction. The NPG letter in effect contests the applicability of Bridgeman v. Corel in the United Kingdom, even though both Wikimedia Commons, and the uploader, are both located within the United States. The letter also claims that by making the images freely available on Wikimedia Commons, Mr. Coetzee would also be liable under the British Copyright, Designs and Patents Act 1988 for any copyright infringement committed by other users who download and use the images.

Response by the Wikimedia Foundation
Erik Möller, deputy director of the Wikimedia Foundation, made a statement on the issue, clarifying the stands of both parties on the incident. Möller stated that although the NPG has agreed that the images are in the public domain, the NPG had contended that they own the exclusive rights to their reproductions of the images, using this to monetize their collection and assert control over public domain content. Möller also stated "It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever." Möller further described the agreement that other cultural institutions have made with Wikipedia to disseminate images: two German photographic archives donated 350,000 copyrighted images, and other institutions in the United States and the UK have made material available for use. The NPG stated that the images released by the German archives were medium resolution images, and that the NPG had offered to share images of the same quality.

Another blogger in support of Wikimedia contested the financial impact of the uploads on his own blog, stating that the NPG makes more money selling food at its café than it does yearly licensing images from its collection for use on other websites, an average of £10,000-£15,000 a year. However, a reporter for the BBC acknowledged that the NPG made a larger amount of money licensing images for use in traditional publications alone in 2008, a total of £339,000.