[Infowarrior] - 'Electric Slide' on slippery DMCA slope

Sat Feb 3 21:42:56 EST 2007

'Electric Slide' on slippery DMCA slope

By Daniel Terdiman
http://news.com.com/Electric+Slide+on+slippery+DMCA+slope/2100-1030_3-615602
1.html

Story last modified Sat Feb 03 07:45:52 PST 2007

'Electric Slide' on slippery DMCA slope The inventor of the "Electric
Slide," an iconic dance created in 1976, is fighting back against what he
believes are copyright violations and, more importantly, examples of bad
dancing.

Kyle Machulis, an engineer at San Francisco's Linden Lab, said he received a
Digital Millennium Copyright Act takedown notice about a video he had shot
at a recent convention showing three people doing the Electric Slide.

"The creator of the Electric Slide claims to hold a copyright on the dance
and is DMCAing every single video on YouTube" that references the dance,
Machulis said. He's also sent licensing demands to The Ellen DeGeneres Show,
Machulis added.

Indeed, Richard Silver, who filed the copyright for the Electric Slide in
2004, said on one of his Web pages that the DeGeneres Show had been putting
up a legal fight as he tried to get compensation for a segment that aired in
February 2006 in which actress Teri Hatcher and other dancers performed the
popular wedding shuffle.

The 1998 Digital Millenium Copyright Act governs copyright infringement as
well as technology whose purpose is to circumvent measures intended to
protect copyrights. Under the DMCA, rights-holders can complain to services
like YouTube that content uploaded by users infringes their copyrights.

Silver did not respond to an e-mail sent Friday asking for comment and did
not answer several phone calls to his Groton, Conn., home. A representative
for the DeGeneres Show declined to comment.

But on the YouTube page Silver himself posted showing the Electric Slide, he
wrote, "Any video that shows my choreography being done incorrectly is being
removed. I don't want future generations having to learn it wrong and then
relearn it as I am being faced with now because of certain sites and
(people) that have been teaching it incorrectly and without my permission.
That's the reason I (copyrighted) it in the first place."

YouTube has been dealing with a slew of DMCA takedown claims recently.
Viacom on Friday demanded the service remove a hundred thousand videos it
claimed infringed its copyrights.

Some may find it odd that a dance could be copyrightable, of course. But
according to Jason Schultz, a staff attorney with the Electronic Frontier
Foundation, dance moves can definitely be protected under copyright law.

"You can copyright the choreography for dances," said Schultz, "and then
enforce the copyright against anyone who publicly performs the dance."

Does that mean that everyone who giggles their way through the Electric
Slide with the wedding videographer shooting away is violating copyright?
No, but the videographer could be at risk. But Schultz said he believes
Silver's claims against Machulis and others who have posted videos on
YouTube may be questionable.

"Someone who performs it noncommercially or adds their own artistic flair to
the dance has a pretty good fair-use argument that their performance is
noninfringing," Schultz said.

Because there are only about 20 seconds of actual footage of people doing
the Electric Slide out of Machulis' nearly five-minute video, Silver's claim
may be on shaky ground, Schultz said.

"Here, it's such a small piece of the video, and such a small piece of the
dance (that) I think if (Silver brought) a copyright lawsuit, he would
lose," he said.

Joe Pesci, Electric Slide master
Machulis, who has reposted his video on another online site, said he is
considering a counterclaim on the theory that Silver's copyright applies
only to a videotape of his original tutorial of the dance. But Schultz said
the format isn't a concern in this case.

A blogger named Rob Lathan also recently said he got a DMCA takedown notice
from YouTube.

Lathan had posted a video of himself dancing the Electric Slide on stilts on
NBC's Today Show. Now, he said on his blog, his video had been removed by
YouTube after a complaint by Silver. But Lathan seemed nonplussed by
Silver's complaint.

"I'm gonna fight him with everything I've got," he wrote. "And you know what
that is, right? My trusty pair of shiny red stilts."

It appears Silver has for several years aggressively defended his copyright
on the dance. In 2004, Silver apparently wrote an e-mail to Donna Woolard,
an associate professor of exercise science at North Carolina's Campbell
University, demanding she remove a video of the dance from a Web site. He
complained the dance wasn't being done correctly on the video, and Woolard
took down the video.

Silver wrote, according to e-mail correspondence posted by Woolard, that he
had sued two Hollywood production companies for using the dance in several
films and that he was now adding her as a co-defendant. It's unclear what
happened to the suit.

Interestingly, he also complained that actors in those movies also didn't do
the dance right. In fact, of several movies mentioned, surprisingly, Silver
said only Joe Pesci, best known for his Oscar-winning role in the gangster
classic Goodfellas, performed the dance correctly in the decidedly
lesser-known film, The Super.

"I realize that this incorrect version of my choreography has been around
for some 27 years," Silver wrote, "and it seems pointless to try and correct
it at this time but because of the legal ramifications, my lawyers have
suggested that I take this approach."

So does doing the Electric Slide badly protect you from charges of copyright
violation? To Schultz, an incorrect version of the dance may still be
covered under copyright law as a derivative of the original, but it depends
on the context. In the case of Machulis' video, the missteps of the dance
probably mean a loss of Silver's rights.

"Slight variations (of the original) are arguably derivative," said Schultz,
"but something else, like doing (a dance) out of sequence, you're probably
not even getting close to his copyright."