Although this Kat has recently been living with a spotty connection, which almost cut him off the blogosphere for a week, he noticed that Professor Rebecca Tushnet published a new article on 'Performance Anxiety: Copyright Embodied and Disembodied'. According to the abstract,
The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance - both as protected work and as right - is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.
|(c) Stephen Moorer|
Creativity and fluidity
The author observes that plays and scripts, although meant to be performed, are protected as works, and that only certain performances are protected under US law (e.g. performances of a musical work or play, fixed in sound or audiovisual recordings). The protection of movies and other audiovisual works raises the possibility of recognising a separate protection for the dramatic work thereby depicted. Copyright law, however, 'has often ignored the fluidity of creativity, especially when it comes to works that are performed'. Contrary to literary works, performance is 'less fixed and predictable', as it is based on interaction between performers, which produces a unique interpretation of the underlying plot. According to the paper, this fluidity 'is inherent in any work under modern copyright law', and the boundaries of a work only emerge through comparison with other similar works:
Every copyrighted work is therefore like the script for a play: it is a blueprint, but not just for one particular instantiation. Rather, the blueprint can have a potentially infinite series of variations. All works are surrounded by possible derivative and infringing variants, most unrealized. However, as copyright’s scope expanded, the conception of a work of art, paradoxically, hardened.Professor Tushnet describes the sacralization process that focused on a 'single canonical performance as the embodiment of a work', explaining that a static work raises fewer legal concerns than a changeable performance. To underline how performance may affect, and change, the meaning of the underlying work, she provides an exhaustive list of examples, ranging from Tina Fey's parody of Sarah Palin, to Jimi Hendrix's performance of The Star-Splanged Banner. The trasnformativeness of performance may not be widely recognized yet, but sensitivity towards it appears to be on the rise. The author cites the recent case of Keeling v New Rock Theater Prods as an example of this enhanced sensitivity, but warns that ' [i]f we don’t have a good vocabulary for explaining how meaningful performance is, it should come as no surprise that we don’t even know how to give credit to performers'.
'[C]ontroversies over performance works', the paper notes, 'make up a large share of disputes over joint authorship in the U.S. system'. The courts' tendency to award authorship to a single person (motivated by the fact that joint authors share equally in the rights to a work, and can license the work non exclusively without the consent of the other authors) 'often leads to dismissiveness regarding the real creative contributions of others involved in bringing a work of performance to its audience'.
|Kats are real performers!|
A plausible solution, according to the author, is to openly identify 'specific roles eligible for joint authorship treatment ..., making explicit judgments about manageability rather than implicit judgments about value'. On the other hand, instead, an overall reform of the system, through the allocation of interests proportionally to the contributions, or by partitioning copyright into smaller parcels, recognising 'microworks', would probably have an overall negative impact on the protection of authors' rights and third parties.