Can There Be a Performance Right in a Graph?

This Kat had no business being awake at 3:00 am. For his sins, he began to listen to a podcast of a business interview program produced by one of the world's largest media conglomerates. One of the main ways by which prospective interviewees are brought to the attention of the interviewer is to provide the interviewer with a copy of the latest research report that the prospective interviewee offers to its customers on a subscription basis. In conducting the interview, the interviewer will then usually make reference to the interviewee's research report, often supplemented by a brief summary of this report. This summary will usually be a sound-bite synopsis of the main points of the report, but sometimes it involves orally describing a chart, table or graph set out in the report. Whatever the nature of the interviewer's treatment of the report, the interviewer will invariably follow-up by saying something along the lines of the following:
"Listeners, don't contact me and ask for a copy of the interviewee's research. We protect the copyright of our interview guests." 
My immediate response was to think--"how admirable of the interviewer, putting the interviewee's copyright protection first".  Stated otherwise, what he meant is that he won't scan the report for the listeners of the program; if you want to see the entire text, take out a subscription with the interviewee. But, as I began to push 4:00 am, I began to wonder -- what about the interviewee's public performance right? As a matter of intellectual curiosity, had the interviewer done anything that might affect the interviewee's public performance right in his report?

Pushing 4:30 am, two thoughts came to mind. First, there is the possibility that the interviewer's oral summary of the text might be deemed a public performance. While possible in principle, the likelihood seems low, very low. Given the brevity of the summary, either the summary amounts to the interviewer's own expression of the underlying ideas contained in the report and/or it is an immaterial taking of the interviewee's contents. And the interviewer may well have said something to the interview such as "I assume it will be ok if you I refer to your report during the interview", to which the interviewee said to himself: "OK? You can't refer to it enough! Just make sure that you get my conclusions right and your pronounce my name correctly."

More interesting for this Kat is the second possibility--might there not be a public performance by the interviewer with respect to the graphs/charts/tables found in the report? Take the situation in which the interview refers to "Graph 1", which sets out the trend for sales in a certain industry for the period between 1995-2010. The interviewer states, "Listeners, what a great V-shaped graph, with the quantity of sales on the x axis and the year on the y axis, with the high points both in 1995 and 2010, and the low point in 2005." This is not a sound-bite summary of a lengthy discursive text, but a reasonably detailed oral description of what appears in the graph. On the other hand, can anyone claim originality in a V-shaped graph; any graph?

It is now 5:15 am and I begin to break out in a cold sweat: Is it, or is it not, a public performance, of Graph 1? I say to myself that it might depend upon whether the applicable local law treats a graph as an artistic work (for which probably no public right exists) or a literary work (regarding which the public performance right will apply).

It is now 6:00 am and all I want to do is catch a few moments of rest. But Mrs. Kat reminds me that it is time to get up -- "a new day", in her words. Off to work, I listen a new podcast broadcast, where the interviewer begins to describe the housing market for a certain region from 2008 to the present. "It is a perfect hockey stick", he tells us. A public performance of the interviewee's Graph 2, or not? Not a "new day", but copyright déjà vu, something like Bill Murray and Groundhog Day (performance right is available).
Can There Be a Performance Right in a Graph? Can There Be a Performance Right in a Graph? Reviewed by Neil Wilkof on Thursday, March 08, 2012 Rating: 5


  1. I am contemplating another question, which may be easier to answer (I am not an expert only an informed reader of this blog). A student asked me recently, if it would be design right infringement if somebody took a photograph of his fashion design at a trade show. As far as I know, design right only protects the copying of the product (the 3D object) so it wouldn't be design right infringement. However, if the item he is exhibiting is a one-off design (a prototype) and he hasn't produced any other items at this stage, could we regard this as an artistic work? If so, it would be protected by copyright and taking a photograph without his permission would be infringing his copyright in the 3D artistic work... Is this correct or is his fashion design anyway protected by design right as the design is intended for industrial production?
    If this is the case, could anybody take photographs of his design without his permission and then reproduce the photographs in 3D (as the copyright holder has the right to control reproduction of his work in any medium) without infringing an unregistered design right as the photographer could insist that he just copied his own photograph.
    As I said, I am not an expert. I am sure this is much easier to solve than the performance right question.
    By the way, I would have thought that any graph would be treated as an image (information graphics) rather than text as it is a visual representation of a complex 'reality' and not text. This means that performance right wouldn't apply.
    Kind regards
    Silvia Baumgart
    Own-it Programme Coordinator

  2. There is no public performance right for pictorial graphic works (i.e. graphs/charts/tables). Instead, owners of pictorial graphic works enjoy the exclusive right of public display. See 17 USC 106(4) and (5).

    One could argue that a description of a graph/chart/table is a derivative work. That argument probably wouldn't be successful in most situations I can imagine as a graph/chart/table usually is an expression of unprotectable fact. But, I could be taking a narrow view of what charts may express.

    Finally, a podcast (assuming it is downloaded and not streamed) does not necessarily constitute a public performance. The initial performance that is recorded is not necessarily (or usually) done in public, and the download (distribution to the public) does not involve a performance. See US v. ASCAP 627 F.3d 64.

  3. Dear Anonymous

    Thanks for the comments and the clarifications under U.S. law. As for whether the podcast is a public performance, my reference to the podcast was simply to explain how the broadcast came to my attention. The initial radio broadcast (from which the podcast is made) must certainly be a public performance. I apologize for my lack of clarity on that point (probably due to lack of sleep ....)

  4. Neil – under Section 2(c) of the Indian Copyright Act, 1957 an artistic work is defined as:

    (c) "artistic work" means-
    (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a
    photograph, whether or not any such work possesses artistic quality;

    Since this is an inclusive definition, I would interpret that there would be a copyright in a graph as an artistic work. Further under Section 52(1)(u) of the Act, the following acts in respect of an artistic work are exempted from infringement:

    (u) the inclusion in a cinematograph film of-
    (i) any artistic work permanently situate in a public place or any premises to which the public has
    access; or
    (ii) any other artistic work, if such inclusion is only by way of background or is otherwise incidental to
    the principal matters represented in the film;

    Is the showing of the graph an act incidental to the principal matters represented in the show that you are referring to? In that case it would be an exception. In any event, there is no specific right of performance granted to artistic works under Section 14 of our Act. The right of performance is only in respect of literary, dramatic and musical works.

    I must also point out Section 38(4) of our Act that sates that:

    (4) Once a performer has consented to the incorporation of his performance in a cinematograph film, the provisions of sub-sections (1), (2) and (3) shall have no further application to such performance.

    Subsections (1) to (3) of S. 38 deals with rights of a performer. So in my view, the performance rights if any of the interviewee in the graph was waived once he or she consented to be filmed for the interview!


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