Yesterday, I wrote a relatively angry, rambling weblog entry about the whole Electric Slide situation, and the EFF’s handling of it, and where I believed they were wrong. I wanted to back away from that entry.

Now, I know they were wrong. They totally messed this one up and it brings up a really bad way things can go south when important issues are being discussed or handled.

To recap:

A guy named Ric Silver created a dance move he called the “Electric Slide” in 1976, and in 2004 he copyrighted this “dance”, or so he claims. He has then gone after many appearances of this “dance” on the web, ranging from home videos attempting the dance, music videos, or even folks talking about how to do this dance. The “blogosphere”, which easily slips into the role of whiny court jester, made fun of this and complained about it. Things started to heat up earlier this year, specifically.

The Electronic Frontier Foundation then mounted a lawsuit against Ric Silver regarding his “takedown” of a video that had ten seconds of an Electric Slide-like dance on it. In it, they made a lot of arguments and said he was doing a bad thing.

Then, a breakthrough! There was an announced “settlement” between the EFF and Ric Silver over the status of the “Electric Slide”, and it was announced that Ric Silver would be licensing his dance Creative Commons Attribution NonCommercial 3.0. All parties rejoiced and the jesters jingled their bells and the world was bright and happy again.

Except over here. I contend this entire thing was a farce, and that by doing this “settlement” the EFF has made things worse, not better. I know, I know, I must have left my jester hat at home. But the fact stands: this settlement should never have happened.

I said that I was considering doing this dance, calling it the “Jason Scott Slide” and selling it for a dollar. Current signs are pointing to me doing this very thing, releasing my new product either tomorrow or the day after. I’m pleased to announce I already have some pre-orders, in fact, from people who believed I’d be in the right to do so.

Here comes some law!

It turns out I was partially wrong yesterday. You can copyright choreography. This provision was added in 1976. Here’s the current statement by the US Copyright Office about this specific copyright:

http://www.copyright.gov/fls/fl119.html (archive)

The salient lines, from that page, are here:

Choreography and pantomimes are also copyrightable dramatic works. Choreography is the composition and arrangement of dance movements and patterns usually intended to be accompanied by music. As distinct from choreography, pantomime is the art of imitating or acting out situations, characters, or other events. To be protected by copyright, pantomimes and choreography need not tell a story or be presented before an audience. Each work, however, must be fixed in a tangible medium of expression from which the work can be performed…. For choreography, the work may be embodied in a film or video recording or be precisely described on any phonorecord or in written text or in any dance notation system such as Labanotation, Sutton Movement Shorthand, or Benesh Notation.

This is, in fact, what Jason Schultz of the EFF referred to in a news.com story (archive) about this subject. Here’s his salient lines:

Some may find it odd that a dance could be copyrightable, of course. But according to Jason Schultz, a staff attorney with the Electronic Frontier Foundation, dance moves can definitely be protected under copyright law. “You can copyright the choreography for dances,” said Schultz, “and then enforce the copyright against anyone who publicly performs the dance.” Does that mean that everyone who giggles their way through the Electric Slide with the wedding videographer shooting away is violating copyright? No, but the videographer could be at risk. But Schultz said he believes Silver’s claims against Machulis and others who have posted videos on YouTube may be questionable. “Someone who performs it noncommercially or adds their own artistic flair to the dance has a pretty good fair-use argument that their performance is noninfringing,” Schultz said.

Wow, so open and shut and no Jason Scott Slide, right? Wrong.

There is such a marked dearth of actual case law involving copyrighting choreography as to be nearly imperceptible; specifically, it appears there are a total of two cases, one of which was settled out of court, and neither of which really apply to this situation.

The definitive essay which researched the very subject of copyrighting choreography and lamenting the dearth of solid case law/directive in this field was written by Julie Van Camp in 1994. Called Copyright of Choreographic Works, she gives a well-researched history of the institution of a choreography copyright, the implications, and the specific and distinct accompanying documentation where congress intended to not include “social and recreational dances”!

Let’s make that nice and big:

Choreography Copyright was not intended to cover social and recreational dances.

Here are some additional excellent discussions/coverage of the whole idea of choreography and copyright, and this electric slide case, a lot of which was discussed well before the EFF got involved:

• The Strange Case of Edward Einhorn v. Mergatroyd Productions by Nancy McClernan which gives a (one-sided) overview of the 2005 lawsuit. (archive)
• The other side, Edward Einhorn, wrote his own essay, A Case for the Stage Director’s Copyright (archive). In this and the previous case, the issue at hand is the blocking of stage directions across an entire play, and not a specific, multi-step dance move.
• Choreography and Alternatives to Copyright by William Patry. Mostly talks about how choreographers tend to sort these problems out internally in tight-knit communities. (archive)

But why listen to me? The EFF itself, a month after Schultz indicated that Silver had a case, registered a complaint on March 1st in which they claimed he had no case:

15. Upon information and belief, the Sublevel 3 Video does not infringe any copyright
owned by Silver due to Silver’s failure to properly register his copyright, the uncopyrightability of
the “Electric Slide” dance steps, the lack of similarity between the Silver Video and the Sublevel 3
Video, and/or the fact that any similarity between the two videos would be non-infringing selfevident
fair use under 17 U.S.C. – 107.

I happen to agree with this, strongly. The Electric Slide is a social dance, a small set of dance moves, composed of smaller obvious dance steps pushed together. The fact that you can execute the entire move in less than 10 seconds falls under not just fair use, but well beneath any standard of “choreography” as intended in the law. This was an uncopyrightable dance, being used improperly in a takedown notification to YouTube and a bunch of other websites.

So what happened?

Creative Commons happened, as far as I could tell.

I don’t know who initiated settlement talks, but the fact that the request was then to put the dance into Creative Commons, likely (I’m guessing) portraying it as “You can still protect your dance, but people doing it for no commercial gain can still have fun”, tells me the EFF probably retorted after a mea culpa from Silver. I could be entirely wrong on this.

But for all the dearth of real case law surrounding the copyright of choreography, Creative Commons has even less. It’s rather untested in court, and certainly not as a methodology for copyrighting movement. I question whether it’s even possible to license any choreography under Creative Commons, let alone a 10 second dance.

So no, EFF, you messed up this one. You do good work, but you shoved this one through the door and came to an “amicable” solution which in fact implies a lot of bad ideas about copyright are valid. And they are not.

Therefore, unless I get the most amazing e-mail or communication ever that convinces me otherwise, I have to start practicing the Jason Scott Slide, pick out the right silly hat from my collection, and set up a sales page. I’ll let you know when that’s ready.

I’ve also decided which charity will get any cash that comes in from my Jason Scott Slide video sales: Childs’ Play, which provides books, toys and games for hospital-bound children around the world.

At least some good can come of this.

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