Skating on Thin Ice: The Intellectual Property Ramifications of a Figure Skater's Public Performance

By Richmond, Vanessa E. | Marquette Intellectual Property Law Review, Summer 2016 | Go to article overview

Skating on Thin Ice: The Intellectual Property Ramifications of a Figure Skater's Public Performance


Richmond, Vanessa E., Marquette Intellectual Property Law Review


Introduction  I. Copyright Law Overview     A. Copyright Law and Music     B. Copyright and Public Performance Right     C. Performing Right Organizations and Licensing     D. Copyright Law and the Figure Skater II. Case Law Overview     A. Licensing and Copyright Infringement     B. The History of Public Performance Rights     C. Music Sampling and Copyright Infringement Conclusion 

Introduction

Imagine a figure skater gliding on ice while performing choreographed athletic and artistic maneuvers for an audience. Now imagine this performance is done in utter, complete silence. Her moves would look odd without the sound of music, which is an inherent part of competitive figure skating. This is not a positive image. The music a skater uses is essential to the sport of figure skating because it tells a story. (1) Figure skating is composed of both athletic and artistic maneuvers set to music. Judges evaluate a skater's interpretation of the music she performs to. Because music choice is important for the competitive component of the sport, skaters are challenged to find music that appeases the sport's judges, spectators, and potentially judges in a court of law.

Historically, figure skaters performed to the instrumental music of classical composers like Tchaikovsky and Chopin. (2) These pieces fell well inside the public domain for use in performance and thus, no one had a legal claim on the works. (3) Additionally, there was no legal claim on the composition as there is no public performance requirement for sound recording. As a result, skaters could skate to works inside the public domain without worry of Intellectual Property (IP) ramifications at rinks across the world.

However, recent rule changes to international and national figure skating competition now permit the use of vocal music in the competitive performances of men, ladies, pairs, ice dancing, and synchronized skating. (4) This rule was made to increase public interest in the sport. (5) American skaters may perform season-long across the United States and globally with vocal music. As a result, skaters are performing competitive free programs, not to the music in public domain, including the classical pieces, but instead to the popular music of Michael Jackson and Pink Floyd. (6) This Comment will address this recent change of rules and its IP implications. While a fair amount of the compositions skaters historically performed to, such as the Firebird Suite and Rhapsody in Blue, may still fall under copyright protection; recent works could pose a greater threat because the composers are alive and actively protecting their copyright.

This research is significant because figure skating is a sport practiced by many and if musical artists attempt to enforce their intellectual property rights against amateur athletes of all levels in the sport, there would be ramifications that could change the sport. Specifically, this Comment seeks to address the copyright protections that are impacted by the skater's performance to copyrighted material.

This Comment will discuss whether skaters have permission to use music, how a skater could obtain permission, whether the performance of a skater using particular music constitutes performance under copyright laws, and the ramification of such use. Further, this Comment will examine what skaters need to do to protect themselves and prevent intellectual property conflicts. Section I consists of a copyright law review analysis of copyright infringement and public performance. Section II consists of a historical case law application of copyright law in relation to figure skater use of copyrighted material.

I. Copyright Law Overview

The intellectual property right at issue here is copyright law. The Copyright Act of 1976 grants copyright owners' rights to their work. (7) Copyright law incentivizes creators to place their work into the marketplace. (8) It protects "original works of authorship. …

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