After posting Foot contributor Paul Parish’s eloquent and provocative outcry on the YouTube crackdown on user Ketinoa’s large video collection, I received some illuminating information on copyright law from Marc Kirshner, of the newly formed Tendu TV.
Here it is, filtered through the law-ignorant mind of moi:
–In order to maintain their right to certain dances, organizations such as the Balanchine Trust have to enforce copyright protection. If they don’t complain to YouTube, for example, about the Kirov clips of Balanchine works that Ketinoa put up, they’re at risk of what’s known as copyright abandonment, which means that when a real risk comes along (such as did with the Martha Graham company under Ron Protas), they’ve relinquished their legal right to prosecute.
THIS JUST IN, from lawyer Elizabeth Russell, specializing in the arts and issues of copyright:
Regarding copyright enforcement, abandonment is a concept that applies in trademark law; but there is no statutory abandonment provision in copyright law. And there’s a reason for that: trademark law serves consumers. If a business chooses not to be diligent in policing its trademarks, it is in the consumers’ best interest to have the trademark become unenforceable. Copyright, on the other hand, is a constitutional balance intended to protect the rights of authors (including choreographers) for “limited times,” in order to encourage the creation of, essentially, cultural material. After the “limited time” is up, that material passes into the public domain. Copyright law thus protects authors, in order ultimately to benefit the public. So there are more protections in copyright law for authors, than there are in trademark law for business owners. And one of those protections for authors is: it’s hard to abandon your copyright by accident.
Well, there goes the Balanchine Trust’s big excuse!
–About 95 percent of dance companies have not copyrighted their works. It’s not particularly easy to do so, because you have to determine the “standard” form–called “fixation” in copyright law–which requires careful video documentation and possibly also notation. It’s easy enough to determine a book’s fixed form–the version published–but with dance, questions come up such as, as Kirshner put it, “Is the choreography the steps or the movement between the steps?” This made me laugh: isn’t the issue of what counts as a step and what a transition a philosophical question that each choreographer answers differently? And how do you convert such aesthetic values into legal criteria?
–As little as five seconds of video can count as copyright infringement. But “fair use” dictates that you may “quote” video the same way you would a passage from a book: in a discussion that contextualizes. You could, for example, embed several Giselle mad scenes within an online essay on how each of the ballerinas approached this pivotal moment. (For more on Fair Use in dance, particularly for collections staff, see the Dance Heritage Coalition’s careful, comprehensive 2009 document, “Statement of Best Practices in Fair Use of Dance-Related Materials: Recommendations for librarians, archivists, curators, and other collections staff.” Via Ballet Talk.)
I asked Paul for his thoughts on the addition. Here they are:
It may be time to lobby for a MAJOR change in copyright law. Many issues are changing their look — like the way Washington DC changes as you drive away from one of those circles, the buildings actually shifting places if you’re not operating from a grid. The way things are growing now–some things growing, others shrinking–fair use doesn’t have to mean “in a critical review,” for example.
Yes, these legal points in no way answer the larger questions about what and who the copyrighting etc. serves: whether the laws as they stand defeat the very artform and artists they’re meant to protect (and I do think what serves the artform ultimately serves the artist.)
Here, again, is Paul’s original post.
And here is my followup, about the role of borrowing in artmaking and what Balanchine’s position on YouTube and the Trust’s tight control might have been.
And check out comments by Marc Kirshner et. al.