So now we are supposed to believe that a dance routine, jokes and congressional deliberations are new species of…private property! Every day or two, I encounter new instances of this cultural pathology – the idea that everything, however intangible, can and should be controlled under copyright law.
It bears noting that copyright law isn’t meant to be a one-sided, extremist regime; historically, it has provided a balance between public needs and private interests. The rights of copyright owners were offset by certain public rights of access and use. But after years of demagoguery by film studios and record labels, in which unauthorized sharing of any sort is vilified as “piracy” and barbed-wire fences of digital rights management are erected around every song and video clip, it should come as no surprise that people think that any shred of culture should be propertized and hoarded as mine, all mine!
As CNET News reported a few weeks ago, the inventor of a 1970s dance, the “Electric Slide” has threatened legal action against YouTube and The Ellen DeGeneres Show for hosting unauthorized performances of the dance. (For those of you who have no idea what the dance is all about, it is akin to the “Funky Chicken,” most commonly performed by inebriated people at weddings.)
Richard Silver claims that the dance belongs to him, and so he has sent a “takedown notice” to YouTube, under the Digital Millennium Copyright Act, demanding that it remove any videos that show or reference the dance. He has also demanding compensation from The Ellen DeGeneres Show for showing actress Teri Hatcher and others doing the dance on a show that aired this month. One has to wonder why Silver, who supposedly invented the dance in 1976, didn’t register the work until 2004. Registration isn’t required to copyright a work, but it does provide an extra measure of legal certainty. But let’s leave that aside.
Going through the legal reasoning on this case illuminates the insanity embodied in copyright law today. It is true that choreography can be copyrighted (a recent case involved a clash between Martha Graham’s estate and her former dance troupe over the rights to perform “her” dances). In the case of the Electric Slide, however, it is worth asking whether the dances performed on YouTube and DeGeneres’ show were correctly performed or not.
If incorrectly performed (which seems likely, by even Silver’s admission), it raises the question whether the dance performances should be legally considered “derivative works” (illegal) or a “new work” entirely (legal). Or one could argue that a 20-second video snippet of the Electric Slide is a fair use, for which no permission is necessary.
There is a supreme absurdity in dragging the law, lawyers and property rights into a pervasive cultural practice that has clearly become part of the commons. (Harold Feld has a funny blog post on this controversy at Public Knowledge?s blog.) But who said copyright law today makes any sense?
Then there is the recent claim made by the Republican Study Committee that House Speaker Pelosi’s website was using “pirated” C-SPAN footage of speakers on the House floor in order to advance a partisan Democratic agenda. The idea that copyright law can be used to lock up the deliberations of the “people’s house,” so that only C-SPAN could own and control them for the next 95 years, is of course repugnant. (More on this dust-up can be found at the MyDD blog and DailyKos.)
Finally, word has come that Jay Leno, Rita Rudner and other comedians are suing humor editor Judy Brown for publishing book collections of jokes that the comedians supposedly used in their stand-up routines. I’m not so sure Leno et al. really want to go down this path. They, above all, ought to know that comedy has always been based on the borrowing and recycling of the same old gags, scenarios and schticks. The originality comes in the performance, not in the joke itself. All comedy is a recycling job. Anyone seen The Aristocrats?
For Leno and other stand-ups to sue for ownership of “their jokes” is to attack the creative community that makes comedy possible in the first place. Leno seems to think that comedy emerges from a vacuum…which, come to think of it, may explain why Leno is so unfunny.