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What to consider when putting together a martial arts demo...from an IP perspective

            Taekwondo demonstrations are impressive displays of athleticism and artistry.  Although the average person may think of a “demonstration” as a form of teaching or a presentation of basic skill sets, in martial arts, the terms “demo” and “demonstration” encompass a wide range of choreographed performances.  Some demos are competition events, where competitors are judged on their artistry, originality, technique, power, accuracy, and cohesiveness as a group while performing skills such as traditional forms and patterns (called “poomsae”), choreographed self-defense sequences, and board breaking.  In other settings, demos may be performances whose goal is to promote an aesthetically pleasing form of entertainment.[1]

            When putting together a demo performance, it is vital to take steps to ensure that the demonstration does not land the team in legal trouble.  While most teams are good at mitigating the risk of personal injury and the legal issues related thereto, they are less likely to consider the possible intellectual property ramifications of a demonstration.  There are two areas in demo where intellectual property issues may want to be considered: the choreography and the musical accompaniment.

“They’re Doin’ Choreography”[2]

In some cases, the choreography of a demo itself may be a work of copyrightable art.  The United States Copyright Act protects “original works of authorship, fixed in any tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”  Among the categories of works of authorship Congress chose to protect are “pantomimes and choreographic works.”[3]

            To date, there are no court cases addressing whether taekwondo demonstration is protectable under the Copyright Act.  To determine whether demonstration choreography could ever be considered protectable, it is important to start with how Congress viewed choreographic works under the Copyright Act.  A review of the Congressional comments to the Act shows that choreography must be more than “an arrangement of functional physical movements such as sports movements [or] exercises” in order to be protected.[4]  Instead, “[c]horeographic authorship is considered, for copyright purposes, to be the composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive whole.”[5] 

At first blush, a demo may appear to never be eligible for copyright protection, as it is an arrangement of sports movements.  Taekwondo is a sport and some practitioners choose to pursue taekwondo for the exercise component.  That alone, however, should not preclude taekwondo demos from ever being able to obtain copyright protection.  These same statements describing taekwondo could easily be made about various forms of dance, such as ballet.  Like taekwondo, ballet is a display of athletic ability and grace.  Dancers may elect to compete in dance competitions that resemble sporting events, while some practitioners take up ballet purely for its exercise benefits.  There is no question, however, that certain ballet choreography is protectable under copyright law.[6]

The question, then, becomes when a performance rises to the level of protectability.  It is generally accepted that ballet movements themselves – individually or in combination – are not copyrightable.[7]  Instead, to be protectable, the compilation of ballet movements must be “an integrated and coherent compositional whole.”  In other words, simple sequences of ballet movements performed across the floor are not protectable.  When those movements are integrated into a complete composition, such as Swan Lake, that complete, integrated composition becomes protectable.

            The same should apply to martial arts demonstration performances.  Basic martial arts movements, alone, should not possess sufficient originality to be copyrightable.[8]  For example, training exercises designed to teach develop muscle memory for sequences of defenses and attacks useful in hand to hand combat are likely outside the bounds of copyright.  A demo that creatively combines taekwondo movements into an integrated, coherent composition, however, should qualify for protection. 

Taekwondo demos can and do engage in the dramatic, performance-based storytelling one would find in a classical dance performance, albeit with some different physical movements.  One such example of taekwondo demonstration presenting an integrated and coherent compositional whole is The Dream Of The Bluebird, a historical performance that tells the story of the Japanese occupation of Korea.  Although a historical performance, The Dream Of The Blue Bird is also a taekwondo demo, and is performed by Woosuk University’s demo team.[9]  Another example of a work that may rise to the level of protectability is the Vegas production Panda!, which combines dance, acrobatics, and martial arts demonstrations to tell the story of a panda who trains in martial arts and journeys to rescue the love of his life.  In situations where martial arts demo provides an integrated and coherent composition, its choreography should be given equal footing as choreography for other art forms.

            Even if a demo performance meets the requirements of an original work of authorship, it does not become protectable unless it is fixed in tangible form, i.e., recorded in some manner.[10]  Typically, this is done by creating a video recording of the choreographic performance.[11]  There is no requirement that the recording be professional in quality.  Demonstration teams and/or their masters/instructors/coaches can easily record video with most smart phones.  So long as the recording is sufficient to allow a third party to perceive, reproduce, or otherwise communicate the performance, the recording will qualify as fixing the performance in tangible form.

            What does it mean if demo choreography can be copyrightable?  If demo may, in some instances, be copyrightable, it is important to consider what is and is not subject to copyright protection.  In the copyright realm, ideas are not copyrightable.  Ideas are free for anyone to use.  In contrast, the expression of ideas is subject to copyright protection.  Therefore, the question becomes what is the level of ideas and what is at the level of expression.

Individual movements and basic sequences are considered to be ideas.  Therefore, no one can claim exclusive rights in any given kicking, striking, or blocking technique.  Combinations of movements that are naturally performed together are also unprotectable ideas.  Similarly, a newly invented original movement or skill, while unique, would not be likely to rise to the level of copyright protection. 

Two demos merely including the same elements, albeit in a different order, would be insufficient to find one infringes the other.  Realistically, there are a finite number of movements in martial arts.  Every demonstration will likely include round house kicks, jumping side kicks, and punches.  The original arrangement of those elements is considered expression and may, in some cases, rise to the level of protection.[12]  In other words, while having round house kicks, jumping side kicks, and punches is not protectable, a specific arrangement of those elements along with many others to make an integrated, cohesive work of art may be.

Given the requirement of a work of choreography be an integrated and cohesive whole, an infringing demo would need to capture a substantial amount of the original demo’s movements and perform them in a substantially similar order and fashion before infringement could occur.  It naturally follows, then, that a faithful recreation of demo routines developed by others carries a high risk of infringement.  Recreating a demo routine by another and changing parts of it may also risk a copyright claim if the new routine is substantially similar to the original.  Watching a demonstration and deciding that jumping snap kicks are impressive and should be included in an upcoming original demonstration, however, would not be sufficient to give rise to infringement.  Ultimately, while it may be useful to pull inspiration from existing choreography, teams should be careful not to copy that choreography. 

“I Can Hear Music”[13]

            Because demos incorporate music, copyright considerations also arise with regard to musical recordings.  Musical recordings are protected under the Copyright Act.[14] Therefore, permission to use a recording should be obtained prior to including it in a demonstration. 

Some artists choose to make their recordings free for anyone to use.  For teams looking for music that is not widely known or music that is cost efficient, searching for royalty-free recordings may be a useful avenue to pursue. 

Normally, artists looking to provide their recordings royalty free utilize open source licenses.  These licenses allow anyone to use the work, so long as they abide by certain rules set forth in the license.  Examples of these rules may include limitations on how the music may be used (e.g., whether the music may be used in a commercial manner) or limitations on whether and how the music may be altered.  The most famous form of open source license is the Creative Commons license.[15] The Creative Commons organization provides a number of license templates to copyright owners who wish to provide their works to others in a royalty free environment.  The rights owners can use the various Creative Commons templates to easily select the scenarios under which their works may be used for free. 

While Creative Commons is popular, open source licenses may come in all shapes and sizes.  If a demo team decides to utilize open source music, it should carefully read the rules set out in the license to ensure compliance with those rules.  Failure to comply with the rules in a license is considered use without permission (and copyright infringement).

The vast majority of musicians do not provide their compositions and recordings free of charge.  A demo team desiring to use a song that is not an open source recording should make sure it obtains the proper license.  If a team is unsure where it can obtain a license for a given song, a good starting point would be to check with the major licensing organizations to see if those organizations represent the owner of the rights in question.  For example, major licensing agents ASCAP and BMI maintain searchable catalogues of the songs and artists they represent.  It is also common for musical artists to include their contacts for licensing on their websites.  Typically, obtaining a license involves communicating with the licensing agent, determining the appropriate license, and paying the necessary fees.  Upon doing so, permission is granted and the team may use the song.

It is extremely important to get the proper license.  Not only is using a recording without permission considered copyright infringement, the music industry fiercely polices its rights.  There is a strong likelihood that utilizing music without the proper licenses will result in the licensing agent discovering the use and claiming copyright infringement.  Given the cost of pre-litigation legal work (e.g., resolving cease and desist issues) and federal copyright litigation, it is better financially to obtain a license, rather than “risk it” and use music without permission.

Conclusion

            In addition to considering safety and entertainment issues in designing a demonstration, demo teams should also give some thought to intellectual property.  In doing so, they can insulate themselves against possible legal action that detracts from their art and proceed with peace of mind.



[1] An example of demonstration featuring the world famous Korean Tigers may be found at https://www.youtube.com/watch?v=ENKh-1qUvJA

[2] From “White Christmas” by Irving Berlin.

[3] 17 U.S.C. § 102.

[4] 77 Fed. Reg. 37605-01 (2012).

[5] 77 Fed. Reg. 37605-01 (2012).

[6]Horgan v. MacMillan, Inc., 789 F.2d 157 (2d Cir. 1986).

[7] 77 Fed. Reg. 37605-01 (2012) (“[T]he selection, coordination or arrangement of dance steps does not transform a compilation of dance steps into a choreographic work.”). 

[8] Patry on Copyrights, § 3:96.

[9] Information on this performance art may from its American tour be found here - http://mommypoppins.com/event/dream-of-blue-bird-taekwondo-art-performance

[10] 17 U.S.C. § 102.

[11]See, e.g, Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n,805 F.2d 663, 675 (7th Cir. 1986).

[12] See above.

[13] Title of a song written by Jeff Berry, Ellie Greenwich, and Phil Spector and covered by The Beach Boys.

[14] 17 U.S.C. § 102.

The Greatest Thing Since Slicing Your Own Bread

bread-slicer

Today we take sliced bread for granted, and the phrase “the greatest thing since sliced bread” is usually delivered with rolled eyes and a tinge of irony. The innovation itself was revolutionary though. 

The story of commercial-scale bread slicing highlights the dogged determination of a man named Otto F. Rohwedder, an optometrist turned jeweler turned inventor, who over the course of 10+ years toiled away until he had revolutionized how we purchase bread.

Humans have been eating bread for many thousands of years, but until the early 1900’s we either baked that bread ourselves or bought it from a baker as an entire loaf. For those who have never tried thinly slicing a loaf at home it is a messy, uneven process that often yields mediocre results. 

Rohwedder recognized the need for a better solution. He overcame significant challenges in developing a working prototype, including a government ban on slicing, and ultimately succeeded in securing patent rights and in bringing his machine to market with great commercial success.  

A detailed history is available here

 

 

Coats and Bennett Hires Accomplished Patent Attorney

Coats and Bennett, PLLC is pleased to announce that Edward Roney has joined the firm as an attorney for its patent practice.  Mr. Roney brings a broad range of legal experience to the firm including IP licensing and litigation, inter partes review proceedings, US/foreign patent preparation/prosecution, portfolio management and corporate transactions.

“Mr. Roney brings a wealth of technical and legal experience to Coats and Bennett,” states Ed Green, Member and patent professional at Coats and Bennett.  “Mr. Roney has worked in cellular wireless telecommunications since its inception. His experience developing integrated circuits extends far beyond the CDMA technology embedded in them. He has also prepared and prosecuted numerous patent applications and has extensive experience in related legal matters, such as licensing and working on industry standards.” 

Prior to his role at Coats and Bennett, Mr. Roney was Of Counsel for Troutman Sanders LLP in Atlanta and Chicago working with companies such as Google, Motorola Mobility, Georgia Tech, Lexis and Kulite Semiconductor.  Further, he has been a counselor and advisor to various emerging growth and mid-sized companies concerning intellectual property issues and disputes.

In addition to his legal experience, Mr. Roney founded PrairieComm, Inc. as a fabless semiconductor company providing baseband chips and software to leading cellular handset manufacturers, including Motorola, Samsung, Mitsubishi and Panasonic.  He also has held a variety of technical and management positions at Motorola, including representing Motorola on various industry standards committees and managing the development of Motorola’s first digital cellular handset products.

Mr. Roney was honored in 2000 by Inc. 500 for PrairieComm being ranked as the 25th fastest growing company in America.  In 2001, he was named by the Wall Street Journal to the Unstrung 25 for leadership and contribution to wireless communications.  He was also named as a runner-up for Ernst & Young’s Entrepreneur of the Year.

“I am excited with the opportunity to join one of the top patent practices in the telecommunications space,” states Mr. Roney.  “Given the number of advanced technical degrees and the breadth of legal and industry experience, Coats & Bennett’s patent practice is well positioned to provide its clients with focused counsel and trusted advice that recognizes each client’s unique business challenges.”

Mr. Roney earned his Juris Doctor from DePaul University in 2008, an MS Electrical Engineering degree from National Technological University, and a BS Electrical Engineering degree from Purdue University.

Light and the Lanham Act

A light bulb burns out.  The shelves of your local Lowe’s or Home Depot are stocked with replacements.  Some are LEDs (light-emitting diodes).  Others are CFLs (compact fluorescent lamp).  Some promise “long life.”  Others boast “duallife.”  What is a consumer to do?

In 2007, Congress passed the Energy Independence and Security Act of 2007 (“EISA”) to make the trip to the home improvement store simpler.  The Federal Trade Commission (“FTC”) promulgated regulations under EISA.  The FTC rule demands that light bulb manufacturers provide consumers information concerning a bulb’s energy use in a “lighting facts” panel.  The panel must contain information concerning the bulb’s brightness, estimated annual energy cost, life, appearance, and energy use.  See 16 C.F.R. § 305.15(b)(3)(i)-(ix).  This detailed panel must be displayed on the “side or rear display panel of the box.”  § 305.15(b)(3).  By contrast, a light bulb manufacturer only has to show the brightness (in lumens) and the estimated annual energy costs of running the light on the “principal display panel”—the front of the light bulb box.  § 305.15(b)(1)(i)-(ii).

EISA does not define promotional phrases like “long life” or “duallife.”  Neither did the FTC in its rulemaking.  All the FTC rule requires is that “the assumptions” underlying “any representation” on a light bulb package “regarding the cost of operation or life of such lamp” be “clearly and conspicuously disclose[d].”  § 305.15(d)(6).  The practical result is that an incandescent light manufacturer can make claims like “long life” and “energy-efficient” on the front of the box while burying detail on the life of the bulb on the back of the package in the lighting facts panel.

Consider the competitive situation this puts LED light bulb manufacturers like Cree in.  Cree’s LED bulbs use “84 percent less energy than incandescents and last 25 times longer.”  Home Depot sells Cree’s 40 watt replacement bulbs for $10.97 per bulb.  Home Depot sells a four-pack of GE’s soft white “long life” incandescent bulbs for $1.97.  A consumer not concerned solely with price might be assuaged by the “long life” claim on the front of the package and reach for the cheaper bulbs.

Historically, a party in Cree’s position did not have much recourse against this kind of competition.   It could simply wait for the FTC to take action.  Courts would have seen a false advertising claim premised on section 43(a) of the Lanham Act as an attempt to circumvent the market-policing function of the FTC.

These were the same kind of challenges raised against POM Wonderful's false advertising claim in POM Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228 (2014).  In that case, POM Wonderful sued Coca-Cola for false advertising, alleging Coca-Cola’s 0.5% “pomegranate blueberry” beverage was misappropriating POM’s market for its 100% pomegranate blueberry juice.  The lower courts told POM to take its complaint before the Food and Drug Administration.

This past June, the Supreme Court unanimously reversed and reinstated POM's false advertising claim, opening the door wider for Lanham Act challenges to product labels in regulated industries.  POM Wonderful dealt with the interplay of the Federal Food, Drug, and Cosmetic Act, but the decision's logic can be extended to other regulatory regimes, including the one Congress created for light bulb labels in EISA.

Coats and Bennett, PLLC Hires New Patent Attorney

Coats and Bennett PLLC announces that Brandee Woolard joined the firm as a patent attorney.

“We are excited to have Ms. Woolard join our firm,” states Justin Leonard, Member.  “Her skills add to an already expansive array of talent here at Coats + Bennett.  Ms. Woolard has an innate ability to quickly understand complex electrical inventions, making her a perfect fit in a firm committed to providing its clients with high quality patent services at market-competitive prices.” 

Ms. Woolard earned her Juris Doctor with honors from Duke University School of Law in May 2014.  She passed the North Carolina Bar Exam in July 2014, and was recently sworn into practice.  While in law school, Ms. Woolard completed clerkships for Coats + Bennett and externships for the Court of Appeals of North Carolina and SAS Institute’s Patent Legal Group.  She was an editor and staff writer for the Duke Law and Technology Review, was a member of the Intellectual Property and Cyberlaw Society, and held a vice president role in the Women Law Students Association.  Additionally, she received the 2014 Professional Award from the Duke Law Clinics for her service to clients in the Start-up Ventures Clinic.

In 2011, Ms. Woolard graduated Valedictorian of her class at North Carolina State University where she earned a Bachelor of Science in Electrical Engineering with a minor in Law and Justice.  She was an active member of the Institute of Electrical and Electronics Engineers (IEEE), the Society of Women Engineers, and Service Raleigh. She was a recipient of the prestigious Park Scholarship.

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