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How the EFF Dropped the Ball on the Electric Slide Lawsuit —

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:

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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10 Comments

  1. One problem. Kyle Machulis wussed out, not the EFF. If the client wants to accept a settlement offer, the lawyer must go along. Impact litigation organizations have this problem all the time; the other side offers a settlement that solves all of the organization’s client’s need (and often more), but doesn’t concede the most important legal issues. (This happened, after a fashion, in the JibJab suit, where the publisher of This Land is Your Land agreed to drop the suit before the EFF could get a ruling that the song was in the public domain.) I wouldn’t rush to criticize the lawyers in an impact suit for settling early; the client’s needs and the cause often pull in different directions.

  2. compn says:

    you forget one thing…

    legal battles are costly both for the performer and for the eff.

  3. Jason,

    While I appreciate your interest in the lawsuit and the passion for your legal position, I wish you had reached out to us here at EFF before speculating on the good or bad of the settlement. I get emails all the time from folks who are curious why we do what we do at EFF and I would have been happy to answer your concerns if you had written me. I’ll do it now, but just for future reference, don’t hesitate to drop us a line if you want to engage in this sort of debate.

    As to the merits of your critique, I think you might have misunderstood the terms of the settlement. No where in this resolution do we concede that Ric Silver has any copyright in The Electric Slide. And as you correctly point out, one leading commentator (and several additional cases that we’d uncovered that I’d be happy to share with you) suggest that social dance steps that are not part of a dramatic storytelling are not copyrightable subject matter. As such, we were more than eager to prove in court that Mr. Silver had no copyright to the dance, and we would have done so if we had been given the chance.

    The “problem” arose after we filed our suit when Mr. Silver quickly and immediately capitulated from his earlier threat against Mr. Machulis. He made it clear that he no longer thought our client’s video was infringing and was willing to withdraw any allegations of infringement regarding its use. When a copyright owner does this in litigation, it can potentially kill the case. Cases in Federal Court require under Article III of the Constitution that there be a “case or controversy” between the parties — an actual dispute for resolution. Since Mr. Silver had withdrawn his accusations of infringement, his attorney could have argued that the issue of copyright infringement (and thus copyrightability of the dance itself) was no longer present. Moreover, his willingness to then promise the world (via the Creative Commons license) that he would no longer threaten any non-commercial user for performing it essentially guaranteed that he would never again abuse the copyright system against our client or anyone else under these facts.

    So what about commercial use? Well, as I mentioned, we would have been more than happy to take Mr. Silver to court over this issue and challenge his copyright. However, courts do not take kindly to parties who manufacture disputes in order to seek court rulings when there is no real dispute between them. In this case, there is no indication that Mr. Silver will be sending any more take-down notices or threatening folks like yourself for performing the dance, even commercially. To have pushed on that issue in front of the judge when there was no clear and actual threat to our client or to any other identifiable individual would have posed a serious risk to the credibility of both our client and EFF. At best, it would have encouraged the court to dismiss our case out of hand (with no settlement and no CC license) and at worst, it could have lead the court to find some way to rule against us to teach us a lesson for wasting its time and judicial resources. As Officers of the Court and public interest advocates, that’s just not a risk we’re willing to take, either on our own behalf or that of our clients.

    Moreover, it is important to remember that we are a non-profit with limited resources. The Machulis v. Silver case is hardly the only case we’re fighting at the moment. We have also been heavily engaged in copyright battles with Viacom, UMG Music and Uri Geller, battles over warrantless surveillance with AT&T and the DOJ, Patent Busting, FOIA work, etc. Thus, given the unlikelihood that a court would have ruled on the copyrightability issue (let alone issued a precedental ruling in our favor) and the high cost of litigating such issues, we felt we could do much more to help our clients and the public via the settlement, which ensured victory for our client, 100% litigation-free use of the dance for all non-commercial users, and strong support for Creative Commons, an organization in which we believe strongly, and at the same time freed up our legal team to focus on other cases and issues which deserve just as much attention.

    That said, I can completely understand your frustration with the thought that Mr. Silver might come back and threaten someone who performs the dance for commercial purposes or lacks attribution. However, I honestly think we’ve seen the last of Mr. Silver and his campaign to go after any kind of individual who performs his dance, even for commercial purposes. If he does, though, please do not hesitate to give us at EFF a call or shoot us an email. We’d like nothing more than to finish the job.

    Sincerely,
    Jason Schultz
    Electronic Frontier Foundation

  4. Ric Silver says:

    If any of you had bothered to check the facts – or my web page, you would find that I printed The Electric (c) in 1976 as a handout for the opening which is displayed on my websites [http://the-electricslide.com/id6.html or http://the-electricslidedance.com/id3.html.
    I filed a registration with the Library of Congress and received a registration for the video I submitted in 2004 and am still waiting for the paperwork for the submission I sent in in Feb 2006 for the full choreography as published to the web in 1994.
    This dance was created for my dance company in NYC and premiered in a night club where I was working and I taught the dance nightly for several weeks. It was after that it became a dance craze and became a social dance and then only the basic step and some of the variations are used not the entire choreography in total. I am in the process of mounting it again for my 60th birthday next year.

  5. Andy Baio says:

    Great comment. While I’m disappointed it didn’t end in a ruling, I now have a much better understanding why. Thanks much for the backstory, Jason.

  6. Jason Scott says:

    So what you’re saying, Mr. Silver, is that there are two different “Electric Slides”.

    The “Electric”, which you just linked to, is a semi-complicated creation, with full layout for a multi-minute dance, describing in text notation what moves to make for an entire song, and which you copyrighted in 1976, the year that one could copyright without notifying the copyright office and which could cover this very sort of situation, that is, choreography.

    The second, called more often than not “The Electric Slide”, would be a short, less-than-ten-seconds-to-do series of steps that are what showed up in any amount of countless wedding videos and in the video you saw fit to issue a takedown notice for recently.

    While I don’t like that the situation exists and think the case law and policies are meager, I have no issue or problem with your owning the copyright for the choreography you linked to. I don’t think anyone overly disputes that.

    But do you also claim ownership of the second dance, the less-than-ten-seconds one?

    And which of these exactly did you license Creative Commons?

  7. Ric Silver says:

    They are the same dance –
    the second is the basic step pattern which is taken and varied to make up the entire choreography – The Electric’s full name is “The Electric aka The Electric Slide”
    I had to add the latter after the fist few weeks as people were constantly asking for the Electric Slide – which is in the lyric of the song and is basically one of the variant steps.

  8. Shii says:

    Oh, I understand.

    10-second pattern: not copyrightable.

    10-second pattern, repeated many times with variations so as to constitute a “full choreography”: copyrightable.

    One of those many variations: copyrightable as a subset of the larger choreography.

    Basically, if this paragraph by Emerson is copyrightable: “If we require the originality which consists in weaving, like a spider, their web from their own bowels; in finding clay and making bricks and building the house; no great men are original. Nor does valuable originality consist in unlikeness to other men.” then the phrase “no great men are original” is also copyrightable and nobody can use that phrase again without paying royalties to Mr. Emerson who popularized it.

    Which is wrong. But so is copyrighting a 10-second social dance move.

  9. I find it odd that you tag my web site about the case vs. Einhorn as “one-sided” but not Einhorn’s essay. Especially since, while my piece provides a link to Einhorn’s essay, Einhorn does not return the favor in his piece. I would say that makes me fairer to Einhorn than vice versa.

    I would also like to point out that Einhorn wrote and published his essay weeks before I wrote and published mine. My piece was partly a response to Einhorn’s shot across the bow.

    My site is “one-sided” only in the sense that I advocate a position – which is no different from what Einhorn does. And I provide backup for everything I say about Einhorn, including court transcripts and even exhibits that Einhorn himself entered into the record.

    Finally, if somebody costs you close to $200K in legal fees over a matter of literally 300 dollars, not to mention registered an unauthorized derivative copyright on a work of yours, and then used every trick in the book (although those have just about run out) to avoid cancelling the unauthorized copyright, I wonder how far you would go to make a case for the other side.

    “The Strange Case of Edward Einhorn v. Mergatroyd Productions by Nancy McClernan which gives a (one-sided) overview of the 2005 lawsuit. (archive)”

  10. Jason Scott says:

    I didn’t say it was bad you were one-sided, Nancy. But it is still one-sided; you speculate as to his mode of thinking and his motivations, and the article is primarily a useful insight into “your side” of the event and the experiences you had in dealing with it.

    Similarly, I say that Einhorn gives “his side”, and I call his work an “essay”, not a “report” or similar term. I think the “one-sided” was implied there; I’m sorry it wasn’t explicit enough for you and I’m sorry you lost so much money.