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I. COPYRIGHT: CASES AND MATERIALS
unforeseen accident, what is performed is exactly what is planned. No one bets on
the outcome of a performance of Swan Lake. Ballet is, therefore, copyrightable, but
team sports events, despite the high degree of planning now involved in them, are
not... A “mere spectacle standing alone” cannot be copyrighted. ... It is necessary
for copyright not to have “changing materials” that are “lacking in certainty” or
“unity”, ... even though some variations could be permitted. ... The unpredictability
in the playing of a football or hockey game is so pervasive, despite the high degree
of planning, that it cannot be said to be copyrightable.
- Structure of television show:The reason given in the last sentence of the
above quotation was also one of the reasons given for denying protection to the
structure of a television show as a “dramatic work” in the “Opportunity Knocks”
case earlier: Green v. Broadcasting Corporation of New Zealand [1989] 3
N.Z.L.R. 18 (New Zealand: Privy Council). The court there said the structure
lacked certainty or “sufficient unity to be capable of performance”.
- In some jurisdictions, a musical work comprises both music and
accompanying words. In other jurisdictions, the words are not treated as part
of the musical work but have a separate copyright as a literary work.
- Can a 4-note call sign to identify a radio or television station be a musical
work? This was assumed to be the case in Lawson v. Dundas, (U.K.: High
Court, 1985), where the plaintiff sued for a declaration that he was a joint
author of such a work. The action failed, the court finding that the defendant
was the sole author of the work and that the plaintiff had merely provided him
with ideas.
- Apublishes, for beginning and intermediate players, an album of classical
piano music that is in the public domain. He inserts marks of expression,
phrasing and fingering to help such players. Bcreates his own album, but uses
some of A’s selection containing the same marks. Can Astop Bfrom using
such pieces?
A U.S. court accepted that A’s work qualified as a compilation of musical
works, that the marks were a substantial part of that work which could not be
copied, and granted a pretrial injunction against B:
Consolidated Music Publishers Inc. v. Ashley Publications Inc., 197 F.
Supp. 17 (U.S.: District Court, S.D., New York, 1961)
JUDGE MURPHY:
Defendant ... maintains that the fingering and phrasing for all of the selections are standard and
constitute simply guide lines for the reader of the music, a suggestion for playing piano and not
an addition to the original work. Its argument emphasizes that all of the selections are in the
public domain, ... and that ... the editorial marks of fingering, phrasing, expression, etc. are
“neither unique, extraordinary nor the product of anyone’s ingenuity or originality.” ...
Defendant studiously avoids a straightforward denial of copying and to us the reason is obvious;
the fact of copying is too patent. .. We .. conclude that the fingering, dynamic marks, tempo
