On Copyright for movements, interpretation of copyright, by Valérie-Laure Benabou and Séverine Dusollier* (translated by Kate Davis)
“This interview was given for the first time at the Verbindingen/Jonctions festival organised by the association Constant in Brussels in 2008. The format we chose to present our talk was a face to face conversation, a position that facilitated the dialectic that the subject created between us. When we started discussing the subject “does copyright protect movements?” we did not come to any kind of fixed, definitive conclusion, it was more an endless back and forth of questions and suggestions that we attempted to use as a basis for an agreement or for our positions. Our positions themselves were neither opposing, stable or sure. This written text is a poor reflection of the dialectical game that we engaged in that we had planned as a sort of cross-examination, a fun way for us to give each other the chance to speak, with gestures and movements that allowed us also to change our position in mid-stream, even if it meant contradicting ourselves or suddenly upsetting the discourse. The result of this dual, moving presentation is this dialogue, written but purposefully destructured.”
What movements are we talking about, which movements could be considered to be protected by copyright?
Valérie-Laure Benabou Let’s start with the idea that there are several categories of movements, some of which can be copyrighted and others which could perhaps be protected, or more precisely the rights to which could be “reserved” – meaning they could be considered property – using other legal instruments, such as patents, contracts or even legal entitlements. If we attempt to identify a key for dividing what could be covered by copyright and what would depend on other intellectual property rights, the first distinction that appears is the distinction between the useful and the beautiful. Some movements have value because they are useful while others draw their value from their beauty. Useful movements will not necessarily lend themselves to the same type of system of reserved rights as movements that are beautiful. It’s a bit archetypal, and a little overly simplified as a way to make a distinction, but it is a strong dividing line that could be used.
Useful movements can be used with different goals. Firstly, mechanical movements, for example the movement of an object in a production line, can yield a certain value which may, if necessary, be protected by a patent. The invention in the patent can be a movement, which in a machine for example produces a particular technical effect. It is the technical effect created that constitutes the invention which opens the possibilities of reserving the rights for a movement via a patent.
Then, some manual movements can be reserved through various legal systems, such as expertise. The expertise of an artisan, a baker, an embroiderer, a sewer, who goes through, carries out a certain number of movements, through the repetition of those movements develops a certain expertise and know-how. This know-how can be protected by secrecy of course. That is to say that as long as the movement is kept quiet, as long as it is reserved in a small community of individuals, it enjoys a particular economic value that can be passed on through expertise contracts.
In both these cases, we are considering capturing the movement, in terms of the economic value that it yields through the results it produces – good bread or fine handiwork, which are the result of the movement. But, the movement is not considered in and of itself, as an aesthetic value, which would fall more under copyright.
Séverine Dusollier If we are to imagine copyright protection, we have to work more on the movement not in its practical effects, but in and of itself, in relation to its artistic aim or its aesthetic aim, what we could call the “beautiful movement”. At the same time, concentrating on the beautiful movement is a bit misleading for copyright because copyright is not there to protect only beauty, it can protect ugliness, too; copyright is indifferent to these considerations of aesthetic or artistic value. But when we talk about “beauty” in terms of copyright, what we are trying to protect is aestheticism, the form that can develop in any medium, be it literary, artistic, visual…
The distinction between the beautiful and the useful, a seemingly clear distinction, is actually very elusive, because a series of movements can be located on the verge between beauty and usefulness, like movement in sports. The sporting movement is certainly useful, if you manage to get the ball in the goal, but it can also be beautiful when we consider for example the movement of an ice skater, somewhere between a technical feat and an aesthetic value. Where do those movements fit in our distinction?
Or let us consider the virtual movement – and “virtual” is surely a poor word choice – let us talk rather about a movement made in a virtual, digital environment. In that case it’s obvious that the movement takes on a certain form. But is it a form whose aim is beauty or is it closer to the most faithful translation of the character, of the person in a virtual universe? That is another limited case for a movement that it’s hard to class definitively under either usefulness or under beauty.
But before we really get into the meat of the subject, it could be helpful to remind people quickly what copyright is and how it works, for those among us who don’t have any idea or who have only a vague idea of what copyright is. Copyright protects works in the fields of literature and art. It is different then from rights that have mostly to do with industrial production, such as patents or trademarks, and focuses on protecting artistic forms.
The question that we would like to pose then is when, at what point, does movement enter under copyright, without necessarily taking a stand on the desirability for copyright or the desirability of reserving something under the copyright regime. Once a movement is covered by copyright, those rights can wield their arsenal of protective measures, which at first glance in any case, seem to be defensive arms. Having copyrights on something – for example, a movement – allows you to prevent other people from using that movement, from doing the same thing. Copyright therefore has a protective role that is fairly defensive. But copyright grants first and foremost control to the person over what he or she has created. This control then can of course prohibit as well as also authorize, allowing other to reproduce it, to communicate, which is what we will look at in the example of open-source software and in licence-free works, where copyright is used in reverse, not to prohibit but to authorize.
By asking the question of how movement can be protected by copyright, the idea is not to move towards a monopoly on movements, which would mean a total prohibition to reproduce movements, but rather to see to what extent copyright can latch on to movement. As a consequence of this protection provided by copyright, the author, the holder of the copyright has a choice between various strategies for how to use that movement, ranging from prohibition to authorization. The other point of copyright is that it grants a moral right which allows the author’s paternity of the work to be recognised (paternity is a sexist expression if there ever was one, and we can easily replace it with authorship), which means in any case that the work is attributed to the author, and he or she is recognised as the creator, of a movement in this case, and also so that he can protect the integrity of the work. The moral right is more in terms of protecting the relationship between the author and the work, the movement. In any case, that’s our starting point, the question we are posing: does movement enter into the sphere of copyright protection and if so at what point? To examine that, the first question we have to ask is: can movement be considered a work of art?
VLB Of course it can, obviously! What a question! Movement is obviously protected and reserved, it’s a work of art! Why is it a work of art? Because there is no definition of a work, so it’s easy to say “Why wouldn’t movement be a work, since I don’t know what it is, it’s a work of art”. A work is an intellectual creation. “Intellectual”, hmm, what does “intellectual” mean? It means that someone put meaning, heart, soul, mind into creating the result, he exuded a work, he sweated it out, and the work is the result of that person, it’s the author’s “little baby”. So why should movement not be protected by copyright? From the moment the author stamps it with his personality, when we can actually see the author in the movement, when the movement is the translation in three-dimensional space of what the author wants, of what the author has created, of course it’s a work of art, and protected by intellectual property and by copyright. Copyright is a sort of vacuum cleaner to protect and reserve rights – it doesn’t have a very heavy or high threshold. The only thing required for something to be protected by copyright is not filing for it, not recording it, it is to create, create an original work. “Original”, what does that mean? It means that it’s a work which is an expression of the creator’s personality, and that it be in the realm of form, not stopping short at the level of ideas. But, can movement be reduced to a simple idea? No, movement is always form, movement is never simply an idea, it is always the translation into space, into time of an idea, but it is never the idea itself. The question doesn’t even need to be asked, of course movement is protected by copyright.
Movement is protected by copyright on the condition that it be characteristic, that it be the incarnation of the author’s creative process. If there is no conscious realization on the part of the author that he is creating a movement, then maybe we have to ask the question of whether it is a work or not. Maybe it’s that only movements created as works can be included in the category. But, is it enough to want to create something for the result of this act of will to be a work?
SD That’s exactly where the flaw in the thinking lies, because movement, you say, is “an expression”, it’s never simply an idea. But then this expression must truly be the result of a creation, there must be realization of the creation, realization that a work is being created. However, a lot of movements, in my opinion, do not constitute works; they’re unconscious movements, the movements that are the simple translation of necessary gestures, or simply everyday gestures. If my nose itches and I scratch my nose, I may not even be conscious of the movement. How could I claim a copyright on that movement, something that I’m not even conscious of? If I walk across the room with a peculiar stride, it’s my own step, it’s true that it’s particular to me, it is part of my stride, my way of walking, but am I even conscious of the fact that I am creating a work, and is there a desire to create a work? Consequently, it seems to me that movement cannot be considered a work, especially the execution of natural actions; there isn’t necessarily a construction, maybe it is constructed but without any intention to construct. And if we take the idea that movement can only be protected if it is original, that leaves a lot of movements outside of any protection, like the movements that are painfully everyday – walking, sitting, standing up, yawning, scratching one’s nose, rubbing one’s eyes – these are perfectly everyday movements, and they could not be granted any protection of copyright.
From there, perhaps we could imagine that movement should be protected, but then everything would be a question of degrees. That would mean that we would try to protect not an isolated movement but a movement in a succession of movements, a movement as part of a broader expression, since the movement itself would only be one element in a bodily syntax, but it would be completely arbitrary. What we would be trying to protect would be more the succession of movements, which, using this syntax, this body language, makes it possible to create a work. And we will surely see this shortly, that the fact of creating, of putting movements together, for example in a choreography, can generate a kind of protection, but that then covers the succession of movements, the expression that is the result of different movements put together and conceived of as a whole. The essential issue then for copyright isn’t that “movement cannot be protected”, it is more being able to determine from what point a movement becomes a work of art and can be protected by copyright.
VLB But movement can’t be protected by copyright because movement is a language, it’s a medium. It isn’t “a work”, it’s an instrument for expression, but it isn’t an expression, the result of that expression. It is only a part of a work; movement is only a fragment of a work. Why? Because movement is indispensable for everyone. Think about it; Séverine said “I scratch my nose” – it’s a common movement. I do it twice, three times, four times, five times, six times… Is that choreography? Does that become a protected work? Does it become something I can take and say to someone else “You cannot reproduce that movement without my authorisation?” That’s ridiculous. We wouldn’t have the right to scratch our noses anymore without asking for permission from the choreographer who came up with a 25-minute long nose scratching?
There is a case in French case law, not about choreography, it concerned literary works, but there was an interesting debate on the following question: when is something considered a literary work? In that specific case, someone had written a book about Cajun vocabulary, the Cajun language from Louisiana, and a novelist used words from that book, words from the Cajun language in his novel. The author of the first book took him to court for copyright infringement, saying “You used my words”. And the second author said “But the words in the Cajun language exist in the Cajun language.” Just because I write a book using words that exist in a language doesn’t give me the right to appropriate those words. Just because I create a choreographed piece composed of several movements doesn’t give me rights to all of those movements, or each of those movements – that would be a total violation of our mobility, of our right to mobility, of our freedom of movement. And is a succession, a simple succession of movements enough to make a work of art? That’s ridiculous; if I scratch my nose and then I scratch my ear, will I be able to claim intellectual property rights that would prohibit someone else from scratching his nose and then his ear or scratching his ear and then his nose, since copyright infringement is judged by the resemblance between works? That’s ridiculous. Furthermore, the Paris court of appeals in a judgement from 1967 said “A dance step is by its nature and its purpose, exempt from private appropriation.” You can’t protect a single dance step, you can’t protect two dance steps – imagine if I suddenly said “I think I’ll protect a pas de bourrée.” Could somebody then say “Anybody who wants to do a pas de bourrée and then follow it with an assemblé, has to ask my permission?” That’s ridiculous, absolutely ridiculous!
SD I think it’s so ridiculous in fact just as ridiculous as the idea we’re working on, that movement itself could never be protected, that it’s just the fixing of the movement that could be protected. So, the fact that at one time a movement gives rise to another work, a fixed work, whether it is fixed through notation – which we already talked about this weekend – from the point when the work is fixed in a form, beginning then, it’s that form itself that is going to be protected, but not the movement that makes up the different elements of that form. What do you think of that?
VLB I think that if we’re talking about a notated movement, about a fixed movement, then it’s not the movement that is protected – it’s the translation of the movement. It’s a translation in a language other than movement. It’s a sign. But it’s a literary sign, like a musical note, which isn’t music, which isn’t reduced to the music. Because if I can’t read the notation, I can’t see the work, I don’t understand it and it isn’t something I can perceive, whereas the definition of a work is something that can be perceived by the senses. If I can’t understand it, because the form in which it was transcribed is inaccessible to me, I’m not looking at a work, or it’s at least not a choreographed piece, I have a literary work, that I can read or that I may not understand but that I can only view in its written form.
At the same time, fixing a work isn’t a condition for copyright. It has never been a requirement for copyright to fix the work that is going to be protected. The act of creation exists in its immediacy, protection comes from the simple fact of creating. Obviously, I would have trouble afterwards proving that I am indeed the author, because I can’t prove something that is fleeting, I can’t prove what evaporates, what is immanent. But the protection exists because of the simple fact of creation, I don’t need to fix anything. I don’t need to write anything down to enjoy protection – that would reduce improvisation to something unprotectable for the simple fact that it emerges; it can’t require any kind of fixation, beforehand or afterwards. There has to be liberty of movement in creation.
SD Yet French law is ambiguous on that point, because French law says that it doesn’t protect choreographed works unless they are fixed in some way. It is in fact French law that requires some form of fixation for choreographic works. But at the same time that poses a different question that’s a little troubling, which is that there’s no reason to discriminate between different types of creation for copyright. All creations should be protected in the same way. And it’s only with choreography that French law, Belgian law is more understanding, requires that the work be fixed. We can of course see an issue of proof there, to be able at some time to set the boundaries of the choreographed work by leaving some trace. But it goes without saying that copyright protects literary and artistic works, without any distinction between the category of the work or the form, the media in which the works are developed. So there’s no reason then that they should be less understanding for movements than for other works. There’s a whole list of things that are protected by copyright, even software is protected, can you imagine, software becomes a supposedly artistic or literary work. So it goes without saying that movements could also enjoy the protection of copyright. In copyright that’s what is referred to as “the theory of the unity of art”, which says that the judges who are enforcing copyright, the legislators are not at all called upon to make a distinction between different creations according to the type of art in question. And this has resulted in some absurdities, since copyright has been used to protect, in France again, a salad basket, with the explanation that this salad basket was a form of art like any other. We can see here, obviously, that the theory of the unity of art and the lack of any distinction means that a bit of anything and everything can be covered by copyright. But more specific questions are being raised today for copyright. One of the big questions that’s being asked, for example is “Can a perfume be protected by copyright?” Perfume is a creation, it speaks to a sense, the sense of smell, a sense that has not been often called upon by works that are protected by copyright. So, if we can consider protecting perfume, why not consider protecting movements?
VLB Because as I said earlier, that would present an impediment to our mobility. Copyright may have an expansionist destiny, that wants to nibble away at everything, gain possession of everything, but that doesn’t mean we have to accept this idea for movements. Why? Because accepting that possession, the expansion of copyright to include movement, would have a terrible consequence, a restriction of our capacity to move. So there’s something imperative in that, that movement remain in the public domain, shared by everyone. Perhaps we could consider that certain special movements, truly extraordinary ones, don’t reflect just any common movement. But where is the limit, when do movements become common or extraordinary? It would be very difficult to set a boundary, a value judgement. And copyright cannot make a judgement on value. At what point do we judge a movement to be beautiful, useful, common, extraordinary? We mustn’t leave the way open for copyright to develop everywhere all the time. We have to rather preserve this particular status that is movement under copyright and the timidity with which copyright approaches movement, because of the absolute necessity that we all have of sharing movements with each other, the necessity to reproduce them. If I stroke my child’s cheek, could I even for one second imagine that that gesture would be prohibited to me because a choreographer, however talented he may be, had taken the idea or the image of a caress on a child’s cheek? That would be terrible.
And so what? So what if I recreate a movement? Since I’ve decided how it should be played out, do I necessarily have the ability to prohibit someone else from making that particular movement again? For example, if I create a movement for a prosthesis, for example if I give a prosthesis a certain movement, would that mean that any other human being who knows how to copy and recreate that movement would be prohibited from doing it, because I developed the process that led to that movement? Even if that movement is created in a totally arbitrary way, a product of my imagination? How far can I go in prohibiting another person from recreating a movement? Impossible, terrifying!
The question is this: once I have accepted that copyright can apply to movement – that’s a must, obviously, movement is protected by copyright, and you certainly won’t hear me saying different… So, once I accept that movement is protected, who is going to protect it? Who will enjoy that protection, that reserving of rights? Who will be able to prohibit – as Séverine was saying earlier – or on the other hand permit, someone else to recreate, copy, reproduce, reconstruct this movement? The choreographer? The dancer? The person who gave the choreographer the idea? The scenographer?
There was an interesting decision, an old decision that Séverine looked for and dug up. It’s a decision by the Paris court of appeals from 8 June 1960, about ballet, the famous ballet Le Jeune Homme et la Mort. Do you know who it belongs to, that ballet? Who made the ballet Le Jeune Homme et la Mort?
Public Roland Petit.
VLB Wrong! Jean Cocteau! That’s what the decision said. Jean Cocteau is the author of the ballet. Why is Jean Cocteau the author of the ballet? Because Jean Cocteau is the one who said to Roland Petit: “This is what I want to do”! He’s the one who told the décor maker “That’s how I want the décor to be”! He’s the one who told the costumer “That’s how I want the costumes to be”! and Roland Petit just executed it, he’s only a second-rate artist; the person protected here is Jean Cocteau, because Jean Cocteau is the one who got it moving. It’s surprising; I had always thought that Roland Petit was the author of Le Jeune Homme et la Mort, because the choreographer is after all the one who translates the idea into movements. And I said earlier that an idea isn’t protected, that just the idea couldn’t be protected that it’s the movement, I mean the translation into three-dimensional space, that’s the only thing that could be protected by copyright.
There was another interesting decision in France in a different field, in sculpture. Toward the end of his life, Renoir could no longer sculpt, he didn’t have enough feeling left to sculpt so he worked with his assistant Guino and he gave Guino instructions, he told him how to sculpt. And Guino sculpted according to Renoir’s indications, and the question asked was who of the two was protected by copyright, who of the two was the author. The Court of Cassation’s response was a very simple one: “they both are.” Both of them – Renoir because he was the one who intellectually designed the piece and Guino because he was the one who physically developed the piece. It’s as if suddenly a single person were divided into two parts, the spirit and the hands, and both those parts required protection. So, shouldn’t we imagine it the same way? – Roland Petit is of course also the author of the work, just as much as Cocteau, because Cocteau gave the idea, without which Roland Petit could not have created the ballet and in the other direction, the ballet couldn’t have been made if Roland Petit had not been there because Cocteau didn’t know how to choreograph dance.
SD And could we not then add, after the hand and the spirit, the body – and talk then about the dancers and actors who use their bodies to make the movements that are asked of them? This isn’t really copyright anymore, we’re in the protection of related rights – they’re referred to as rights related to copyright. These are the rights that fall to the artist, the actor, a right to his performance. In the case of movement, it’s clear that movement, the sense of the movement is determined by the choreographer, but the dancer himself, or herself, executes the movement, creates the movement. So where does creation lie? In the person who decides what movement will be done, or in the one who realizes the movement? And what happens if the dancer or the actor improvises a movement? In that case, do the dancer and the actor have copyright on the movement that they just made, or only the right as an executor of a movement? But if they perform a movement that did not exist before?
However in general the actor-artists only have rights when they are performing an existing work, which is already protected by copyright. So there we can see that in protecting movement, we aren’t exactly sure who it belongs to, who created it, which rights will possibly be added successively to cover the movements. And then, it’s also easy to slip outside of the realm of simple creation. It goes without saying that when we talk about movement in a choreographed work, we can say that the chorographer has copyright for the movements, and the artists have a right as the people acting out the movement, and maybe we won’t make a distinction for improvised movements and the movements ordered by the choreographer. But when it’s a question of completely improvised movements, or movements that demand a certain technical skill – I’m thinking here of athletes, or simply of models who walk down the runway to show a collection – the protection granted by related rights becomes less clear. Belgian case law, for example, says that a model who walks down the runway for a collection could not be granted a related right for her action because there is no work protected by any copyright. She’s only walking. So that’s another borderline case, where the movement itself doesn’t garner specific rights.
Here then we already have a whole list of contradictions, and based on these contradiction, we would like to explain how the courts react using some more specific cases to show what difficulties arise.
The first case concerns a choreographed piece. It’s a fairly famous case in Belgium, but it’s also known to our neighbours further South in France. The choreographer is in fact sometimes protected by case law. It is accepted that choreographed works can fall under a copyright. This is the case concerning a fairly famous ballet by Frédéric Flamand, called La Chute d’Icare. Unfortunately I don’t have any video of the ballet in motion, I just have a photo that shows the most famous scene in the ballet, a naked dancer crosses the stage with televisions tied to his feet and he’s dressed as an angel with feather wings. He crosses the entire stage taking slow steps with his televisions. A few years later Frédéric Flamand sees Maurice Béjart use this type of movement in one of his ballets. I’ll spare you the scene from Béjart’s ballet, it’s not one of his finest works. But this is a different ballet in which a dancer, dressed similarly and with televisions attached to his feet, crosses the stage, fairly faithfully recreating the movement of the previous dancer in Frédéric Flamand’s ballet. The first choreographer Frédéric Flamand takes Maurice Béjart to court arguing that “This is a counterfeit that infringes my copyright on this movement, my copyright has been infringed”. And what’s interesting is that in the judge’s decision, the judge looks at what can be protected by copyright in this scene. The judge explains that the scene is made up of a combination of the following elements: a naked or near-naked man, wearing wings and with televisions attached to his feet, walking slowly across the entire stage from left to right and he stops in mid-scene – that’s the photo. And that this scene includes the movement, the series of movements – so the two elements that we argued about as to whether they could be protected – plus the costume, the accessories used, the position – that too is very close to movement – the manifestation of the character, the evocative power, the symbolic significance. With those last two elements, the “evocative power” and the “symbolic significance”, this is more in the realm of the concept, the abstract, not really in the concrete part of the work. And the judge goes on to say “this scene exudes a powerful evocative force that is symbolic and representative and which did not escape art critics to the extent that this scene had become the key scene in La Chute d’Icare. Given that, this combination of elements creates a whole that cannot be divided into its various elements to attempt to show that the work cannot be protected given that each one of the elements taken individually would not be.” So the judge is going to consider that the whole is protected by copyright and that it would not be possible to divide the different elements in this scene to try to protect each element under copyright. So the movement itself, the fact that the dancer slowly crosses the stage, would not be enough by itself to enjoy protection under copyright. It is only the way in which this movement is staged with costumes and certain accessories that makes the movement into something covered or “dressed”, if you will, in copyright, by a specific creation that allows it to earn the protection of copyright.
VLB Another question is whether or not staging can be protected. Why? Because staging something means taking a static, literary work and turning it into a work in motion, a moving work, a work on the stage. And the question that has been asked for many years now is whether directors can be considered authors. Actually, collective management societies, Sacem first among them, have stood in the way of directors wishing to join their ranks for a long time. This question is outdated, I believe, and case law now generally accepts that directors can be considered authors. What does a director do? He gives a certain number of directions as to how a dramatic work will be translated into three-dimensional space, he chooses the décor, chooses the placement of objects. He decides on the characters’ entrances and exits, some of their movements, their behaviour of course. But as part of their behaviour, he has a lot of room to work and can push them to do certain types of movements, and today it’s obvious for everybody that the difference between staging and choreography is very slight. When you take someone like Robert Wilson for example who does everything, theatre, dance… There are no longer very precise boundaries between a show in the theatre and a choreographed show. So if we consider that a choreographed work can be protected, why not protect something like a director’s staging, which if the movements used aren’t everyday, are not common, they can be marked in a space in a particular time. For directors there is protection for a particular musicality in the dialogue as well as the way the play is put into movement. The only thing that we can say is maybe that the director is not the author, especially if he is constrained too much by the author’s instructions. Here again there’s the problem of dependence – the more specific the author is in his play, the more instructions given for the staging, “he coughs”, “he sits”, “he blows his nose” etc., the less leeway the director has, the less creative he will be, the less he will be protected by copyrights. But the question of staging is one that’s already a bit in the past and case law traditionally considers these types of creations to be protected by copyright.
SD The law also says that circus acts can be protected through related rights. Not the technical feats, simply the way in which a circus act is expressed in a particular form. In some decisions even magic tricks, magic shows have been granted protection, or at least certain elements of these magic shows. And in this case what’s actually being protected is the form that the magic trick takes. Like in that decision by the Paris court of appeals in 2003, there was a magic trick that was about 20 or 25 years old where a piano was lifted into the air. A pianist sat at the piano and then the piano lifted up. And that scene was characterised by the following movements, according to the judgement “the piano lifts slowly into the air in an apparently irregular loop, the piano’s front legs leave the floor first, the front of the piano lifts up. Then it swings from side to side until it is vertical, the motion pauses briefly in its progression, before it continues and turns the piano completely upside down, and the pianist who has kept his legs locked during this time has his back to the floor, and then it does loops backwards and forwards – one or more depending on the timing of the show – after which the piano and the musician land back on the ground, with the front legs touching the ground first, and these characteristic elements are clearly recorded on the video.” The magic trick had been recorded and the question was whether somebody who did the same trick with the piano making the same movement in another magic show, if that was copyright infringement of the first work. And here too the judge made a distinction between the skill of the magic trick, the trick itself and the act, which is the way that trick is expressed, the staging, how the trick is staged. But the decision raises some difficult points – when is it the magic trick itself, a flying piano, and when are we talking about a movement that expresses a different way of showing this or that magic trick? There are probably different ways to make a piano fly. So those are decisions that can be difficult to discern.
There are other types of staging, when the artists direct themselves; in contemporary art, all the protection provided to a performance under copyright. I don’t think we have any case decisions, contemporary art is rarely the subject of the court decisions. But we can also raise the question here – is it really a “work” if an artist is just on the stage, giving a performance? Certainly fixing it in some way, making a video of the performance is a work, but the performance itself, certain movements, certain positions that the artist takes to express certain concepts, can that really be protected under copyright? Often performances are above all concepts, not really expression and so we are outside of copyright. But then can we really accept that copyright bypass a whole swath of contemporary art? Simply because contemporary art has chosen a different path than copyright, and has chosen to work on the abstract and on concepts?
VLB Another field we can look into concerning the opportunity for or the existence of protection, is what are known as “expressions of folklore”, traditional movements, sacred movements, prayers, traditional dances… Is that an area that could be covered by copyright? Either we consider that that’s not something that can be appropriated under copyright because it’s an expression that is very old, time-honoured and something that is passed down from generation to generation, faithfully. And actually, in terms of folklore, it’s precisely that tradition, that faithful transmission that folklore guarantees, that means the people expressing the folklore at a particular time are only the custodians, they are not the creators. For that reason they can’t have copyright on folklore because folklore extends beyond the individual creation by those who are acting it out at a given time. It existed before, it will exist after them, it is permanent, immanent.
At the same time, there is one interesting example of case law on the Lambada. I don’t know if you remember, but at one time, one summer, everybody was dancing to “Chorando se foi”. Well, it was a song that had been part of Brazilian folklore for a long time and it became a huge hit all of a sudden because of the arrangement, the new rhythm that was given to this piece of music, as well as the dance that went with it, the Lambada – do you want us to dance the Lambada? No? I can you know, if you want… This piece of traditional music, all of a sudden became a very attractive work financially speaking, with a market. If there is a market, because someone was able to give a new boost to something from their folklore and gave it something new, a certain attractiveness, wouldn’t he be able to take advantage of the market and try to gain copyright on that folklore? There are a few different points of friction here, friction between the market, profit and then the need too to share, to safeguard shared expression and to keep it outside the realm of copyrighted material. But on the other hand, the problem with excluding folklore from the realm of copyright protection means that we will have that peculiar consequence that only Western types of expression that fit the definition for copyright can give rise to a market, to payment while expressions of folklore like those that come from Africa, Asia, etc. will be completely excluded from any possibility of making a profit because they are in the realm of folklore. So this discourse is not only a discourse concerning the principles of copyright, it’s a discourse of discrimination with regards to a cultural regime and the ability to financially exploit something. I think that Séverine agrees with me on that point.
SD Yes. Up to now we’ve talked mostly about movement with the body, but we could also talk about movement with objects. I already talked about the flying piano, but we can also obviously use other works of art. Calder’s mobiles for example – are they protected by copyright as objects? Or are they protected as objects with movement? Is it the movement of the mobile that is the subject of the claim or only the object? Other movement of objects in art could raise the same questions. The famous films by Fischli and Weiss on series of movements. I’m sorry to bring this around to YouTube, you’ll have to deal with the advertising on YouTube [the film Der Lauf der Dinge by Fischli and Weiss is shown]. These creators make works where all they do is use movements; especially when it’s a series of objects in motion that makes up the work, what is going to be protected?
Are we protecting the film, the fixing of these movements with objects or is it the movements of the objects themselves that are protected? And here, if we accept copyright protection with movements of object, we come back to asking the question we started with, but through the action of patent protection, meaning what about the movement of machines and robots?
Last week we talked with the Syndicat des Robots [Robot’s Union], because the Syndicat des Robots is going to be able to ask for copyright protection for the movements that robots make. If we can accept that robots have the right to a union, then surely their works have the right to protection by copyright, don’t they? Otherwise that would really be absolutely ridiculous. Aren’t we getting to a point where an issue of protecting movement becomes the pretext for an absolutely unacceptable shift in the focus of copyright, or a completely excessive movement in copyright? That’s the question I would like to end with, but I’ll give Valérie a chance to speak…
VLB I don’t have anything to add, just that we need to be wary of the moving movement motion. But that’s hard to translate, I realize.
SD Say it again.
VLB So as I said – we must be wary of the moving movement motion.
Text published in Le Journal des Laboratoires, May-August 2012
* Valérie-Laure Benabou is a private law professor at the Université de Versailles-Saint-Quentin-en-Yvelines, France where she heads the DANTE Laboratory and the second year of the Masters in New Information and Communications Technology.
Séverine Dusollier has a PhD in law and is a professor at the Faculté Universitaires Notre-Dame de la Paix in Namur, Belgium. She teaches on the subjects of intellectual rights and new technologies law. She has been director of CRIDS (Centre de Recherches Information, Droit et Société; Centre for Research on Information, Law and Society) since 2010. Her current research concerns common assets and the public domain, interoperability and intellectual rights, and the notion of authorship. She is also a member of the Belgian Council on Intellectual Property and director of the Belgian legal review Revue du Droit des Technologies de l’Information. Séverine Dusollier’s published work is available at www.fundp.ac.be/universite/personnes/page_view/01003580/publications.html