Introduction I. Copyright Law Overview A. Copyright Law and Music B. Copyright and Public Performance Right C. Performing Right Organizations and Licensing D. Copyright Law and the Figure Skater II. Case Law Overview A. Licensing and Copyright Infringement B. The History of Public Performance Rights C. Music Sampling and Copyright Infringement Conclusion Introduction
Imagine a figure skater gliding on ice while performing choreographed athletic and artistic maneuvers for an audience. Now imagine this performance is done in utter, complete silence. Her moves would look odd without the sound of music, which is an inherent part of competitive figure skating. This is not a positive image. The music a skater uses is essential to the sport of figure skating because it tells a story. (1) Figure skating is composed of both athletic and artistic maneuvers set to music. Judges evaluate a skater's interpretation of the music she performs to. Because music choice is important for the competitive component of the sport, skaters are challenged to find music that appeases the sport's judges, spectators, and potentially judges in a court of law.
Historically, figure skaters performed to the instrumental music of classical composers like Tchaikovsky and Chopin. (2) These pieces fell well inside the public domain for use in performance and thus, no one had a legal claim on the works. (3) Additionally, there was no legal claim on the composition as there is no public performance requirement for sound recording. As a result, skaters could skate to works inside the public domain without worry of Intellectual Property (IP) ramifications at rinks across the world.
However, recent rule changes to international and national figure skating competition now permit the use of vocal music in the competitive performances of men, ladies, pairs, ice dancing, and synchronized skating. (4) This rule was made to increase public interest in the sport. (5) American skaters may perform season-long across the United States and globally with vocal music. As a result, skaters are performing competitive free programs, not to the music in public domain, including the classical pieces, but instead to the popular music of Michael Jackson and Pink Floyd. (6) This Comment will address this recent change of rules and its IP implications. While a fair amount of the compositions skaters historically performed to, such as the Firebird Suite and Rhapsody in Blue, may still fall under copyright protection; recent works could pose a greater threat because the composers are alive and actively protecting their copyright.
This research is significant because figure skating is a sport practiced by many and if musical artists attempt to enforce their intellectual property rights against amateur athletes of all levels in the sport, there would be ramifications that could change the sport. Specifically, this Comment seeks to address the copyright protections that are impacted by the skater's performance to copyrighted material.
This Comment will discuss whether skaters have permission to use music, how a skater could obtain permission, whether the performance of a skater using particular music constitutes performance under copyright laws, and the ramification of such use. Further, this Comment will examine what skaters need to do to protect themselves and prevent intellectual property conflicts. Section I consists of a copyright law review analysis of copyright infringement and public performance. Section II consists of a historical case law application of copyright law in relation to figure skater use of copyrighted material.
Copyright Law Overview
The intellectual property right at issue here is copyright law. The Copyright Act of 1976 grants copyright owners' rights to their work. (7) Copyright law incentivizes creators to place their work into the marketplace. (8) It protects "original works of authorship." (9) Under section 106 of the Copyright Act, copyrighted work owners have exclusive rights in their work including the right to reproduction, right to make derivative works, and exclusive rights to publicly perform the work. (10) The focus of copyright law is on the public deriving benefit and the rights of the author are secondary to this focus. (11) While the public derives benefit from skating performance through enjoyment, inspiring future skaters, and exposure to music, that benefit may not outweigh copyright protection. Thus, owners of copyrights can license part of their copyrights to others to ensure protection. (12)
Copyright Law and Music
Musical recordings contain two separate copyrights: (1) "the copyright in the underlying music composition (the song)" and (2) "the copyright in the performing artist's rendering of the composition (the sound recording)." (13)
Copyright law has a special interplay with music. A musical work, including any accompanying words, is one of the eight categories of works of authorship established in the Copyright Act of 1976. (14) The characterization as a musical work is important for legal ramifications. (15) For example, "an owner of a copyright in sound recording does not enjoy a performance right." (16) "'Sound recordings' are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture of other audiovisual work." (17) Works of authorship, such as musical works, are distinguishable from sound recordings because a sound recording is a captured performance. (18) The works at issue in this Comment are musical works and thus enjoy a full performance right. (19) Skating programs consist of the use of both compositions and sound recordings. However, this Comment considers the public performance rights and, therefore, only the composition copyright, or musical work applies.
Skaters have a choice of selecting musical works in the public domain or those with active copyright protection. It would be best for skaters to try to find music in the public domain in order to avoid issues with obtaining permission to use copyrighted music. Using musical works in the public domain provides skaters with options, because popular songs may not fall outside of the public domain since many new songs are based off songs already in the public domain. (20) For example, "the author need add very little to the public domain to meet the standard of originality." (21) Therefore, it is likely that the popular songs skaters choose to use presently is copyrighted material. Permission to use the work needs to be obtained from both of the copyrighted works. (22) There are organizations that help facilitate permissions for use of copyrighted work.
Copyright and Public Performance Right
Copyright law can pose a problem for a figure skater because the use of copyrighted material in routines could require permission from a copyright owner. The Copyright Act established an exclusive public performance right for musical works. (23) "To 'perform' a work means to recite, render, play, dance, or act it, either directly or by means of any device of process." (24) Songwriters have a performance right, and individuals or business entities that want to publicly perform a song must obtain permission from the copyright owner. (25)
A work performed publicly is defined in the Copyright Act of 1976. A public performance is defined as performing "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintance is gathered." (26) A person performing at home for friends is not publicly performing because the home is not a place open to the public. (27) However, performances in public places and 'semi-public' places such as skating rinks are subject to copyright control. (28) A work is also publicly performed when an unauthorized individual transmits a performance or display of the work by any device or process whereby images or sounds are received beyond the place from which they are sent. (29) It is not necessary for members of public to actually receive the transmission. (30) They only need to be capable of receiving the performance. (31) Therefore, a skating performance at a rink...