The Smooth Criminal's Patented Shoes

Michael Jackson and his dancers were able to lean forward beyond their centers of gravity (CG in the drawing below) during live performances of "Smooth Criminal" thanks to specially designed shoes patented by the King of Pop:

U.S. Patent Number 5,255,452, filed by Michael Jackson in 1993, explains that “in the past, a professional entertainer, one of the inventors herein, has incorporated dance steps in his recorded video performances, wherein he and other dancers would lean forward beyond their center of gravity, thereby creating an impressive visual effect. This effect was accomplished by the use of cables connecting a harness around the dancer’s waist with hooks onstage.… However, since this requires stagehands to connect and then disconnect the cables, it has not been possible to use this system in live performances.” The shoes solve this problem by allowing the performer, “by engaging the shoes onto an upstanding post positioned to project upwardly from a stage at a predetermined time, to lean forwardly or put his or her center of gravity beyond the front or rear of his shoes, thereby creating the desired gravity defying interesting effect.”

In a description of similar existing patents, Michael Jackson’s patent mentions footwear worn by astronauts which can be locked onto a rail to aid them in working in a zero-gravity environment.

I would provide a link to a youtube video showing the shoes in action, but my ability to do so without committing copyright infringement is an unsettled question.

(via Boing Boing Gadgets)

A Word to the Wise: "We're Not in the Sandbox"

A New York Times report about a contract dispute between a choreographer and the 92nd Street Y highlights how important it is for artists to have an outside eye scrutinize the agreements they enter into.  The Y commissioned Pavel Zustiak, a Czech choreographer, to create a work to be premiered at the Y's Harkness Dance Festival in New York City, and included a clause in its contract that forbade Mr. Zustiak from presenting any work in New York for a period of six months before and three months after the premiere.  Theaters frequently have this type of clause in their contracts with performers.  Mr. Zustiak ran afoul of the agreement when, thinking that the exclusivity provision applied only to performances of the Y-commissioned work, he scheduled a performance of one of his other works at a Manhattan venue less than three months prior to the scheduled Y performance.  Mr. Zustiak ended up paying the Y to guarantee at least $8,000 in box office receipts, and lost $1,200 in the process. 

The article also mentions the ordeal of choreographer Laura Peterson, who lost thousands as a result of not having a contract with a theater that cancelled a production of her show at the last minute.  The moral of the story is that artists need to put their agreements into writing and have someone qualified review them.  To quote one theater director: “From the perspective of an artist, you’re always thinking, ‘I’m so poor, how can anybody be taking money from me, that’s so mean.’  But it is a business; we’re not in the sandbox.”

You Do Not Have A Right To Be Credited, Part I

People often think that if they create a work, they automatically have a right to be credited as that work’s author. And people often think that if they reproduce someone else’s work (say by placing a photo in a blog), then the way to comply with copyright law is to give that person credit.

These are misconceptions. In general, there is no rule of law in America that says that authors must be credited for their works. And that has been the state of affairs in the United States and Britain ever since Queen Anne, whose Statute of Anne was enacted in 1710 to protect authors from the printers and booksellers who were publishing and reprinting books without the authors’ permission, to the authors’ “very great Detriment, and too often to the Ruin of them and their Families.” This was a statute about giving authors exclusive control over the dissemination of their works, so that printers would have to pay authors for the privilege of publishing books. The idea was that these economic rewards would provide sufficient incentive for authors to write books. And since lofty things like authorial attribution have little to do with hard cash, the Statute of Anne leaves them alone. Copyright law was, and still is to a great degree, concerned with providing economic incentives to creativity: art is a commodity.

Things developed very differently on the European continent, most notably France. There, maybe because writers were the ones making up the law in the aftermath of the French Revolution, the right of attribution is just one of many so-called “moral rights” that authors enjoy. Protection for these non-economic rights is so strong in Europe that someone once got into trouble for placing his business cards next to a collection of art book covers, possibly causing one or two people to mistakenly think that he was the author of those book covers (the one-sentence judgment of France's Cour de Cassation is here).

If you are a creative artist working in the United States, however, all is not lost. In an effort to bring its protection of artistic works into line with international standards, the United States does provide for a right of attribution in the case of certain works of visual art. Also, you can include a provision requiring proper attribution in any license agreements you enter into. I will discuss these possibilities in Part II of this entry.

Enclosing the Commons of the Mind

Did you know that we have scores of films crumbling to dust in libraries all over the country because transferring such works to more durable media would require the permission of the copyright owners – who are nowhere to be found?

Did you know that IBM makes twice as much money from its non-copyright protected software than its patent portfolio (which is, ahem, the biggest patent portfolio in the world)?

If you didn’t know these things, you might enjoy downloading a lecture by James Boyle, the witty and urbane author of The Public Domain: Enclosing the Commons of the Mind. His topic is the vitality of the public domain to creativity. Copyright policymakers often make their decisions based on an assumption that since the purpose of copyright is to incentivize authors to create, enhanced copyright protections must lead to more creation. But, Boyle argues, this assumption is made in the absence of empirical data. He notes that the World Intellectual Property Organization (WIPO) had until recently no economists on staff, apparently because copyright policymakers have scant regard for actual data on how their own policies might affect creative output.

The problem in Boyle’s view is that we all (copyright policymakers included) have a bias against openness. This bias is not based in reality. Who would have thought that Wikipedia would be more reliable than Britannica? Who would have thought that open-source software would be so successful (see IBM example above)? These are examples of Internet-based creative works that have flourished in the absence of conventional copyright protections. They are also creative works that have been immeasurably beneficial to humanity.

In Boyle’s words, “we built the Web for science and make it work [only] for porn, shoes and books.” That is because, although the Internet is uniquely capable of gathering together stores of information from an infinite number of inputs, we have a copyright system that often inhibits access to such information in ways that are of little benefit to authors. For example, the films crumbling to dust that I cited at the beginning of this post. Most books published after 1923 are both copyright protected and out-of-print and have outlived their economic use to their authors (many of whom are actually dead). Think of the knowledge that would be at our fingertips if we could make all this commercially unviable work available on the Internet.

Boyle’s lecture is available here. You can also go to iTunes and download it as a podcast. My synopsis does no justice to how engaging a speaker he is. You should take a listen.

PS. Appropriately, you can either buy his book on Amazon or download it for free.

German Court: OK to Reprint Nazi-Era Newspapers

The state of Bavaria unsuccessfully tried to prevent a publication from reprinting Nazi newspapers by claiming it held the copyright to the papers. But the court held that the rights on editions published before 1939 have expired. Read the full article here.

Another Reason for Choreographers to Videotape Their Work

Many choreographers are understandably wary of videotaping their work because they don’t want someone to use the recording to steal their choreography. Especially for choreography that is new or otherwise not well known, the chances are high that someone who plagiarizes it will be able to present it at a venue without anyone in the audience realizing that the choreography is stolen. However, besides the fact that not videotaping choreography isn't always the best business move (is preventing plagiarism more important than building an audience by publicizing your work?), it's not wise from a legal standpoint either. Copyright law only protects choreography that has been captured on video (or written down using dance notation). That means that choreographers need to record their dances if they want to have legal recourse in the event that someone comes along and copies their choreography without permission.

In order for a work to be protected by copyright, it has to be fixed in a “tangible medium of expression.” Such media include paper, canvas, zeros and ones (in the case of software and digital recordings), film, fabric, stone, concrete, bottles and cans… and on and on and on. Choreography that exists only in the brains of the dancers who perform it has not been fixed, and therefore is not protected by copyright. The same goes for a song that a musician performs at an open-mike but never writes down or records.

To provide themselves with a remedy against unauthorized copying, choreographers need to videotape their work. There’s no need to share the recording with anyone (although registering the copyright with the Copyright Office at the Library of Congress by filling out a form and sending in a video is a good extra precaution, not to mention a prerequisite for suing someone for copyright infringement; the whole process, including video submission, can now be completed online: www.copyright.gov/eco/index.html).

Remember, no recording equals no copyright protection!

Non-Profit or For-Profit?

The New York Times has a good article about whether incorporating as a non-profit is always the best option for companies with a do-good mission. The non-profit model has benefits, such as exemption from taxation and tax-deductibility of donations. But often for-profit companies, whose activities are less scrutinized by state and federal governments and are not restricted to charitable purposes, do a better job of funding their social mission than non-profits.

The Economist's review of Dan Pallotta's Uncharitable: How Restraints on Nonprofits Undermine Their Potential provides another example of a for-profit company doing a better job at charitable fundraising (in this case, to benefit AIDS and breast cancer charities) than the charities themselves. The book discusses the disconnect in American thought between charitable aims and profit-making. There's no reason for the two to be mutually exclusive.