Skating on the Edge of Copyright

by Sophie Galleher

First, think figure skating. Then, watch this. At minute 2:45 Jimmy Ma brings it, unzipping his jacket and giving a tongue wag à la Michael Jordan circa 1998 as his music breaks into a hip hop-electronic dance mix of “Turn Down For What” by DJ Snake and Lil Jon. Surprised? Welcome to figure skating in 2018, where Tchaikovsky’s “Swan Lake” and Beethoven’s “Moonlight Sonata” are things of the past.

Ma’s routine epitomizes the impact of a 2014 rule change where the International Skating Union, attempting to inject life into a sport with waning popularity, repealed a rule that prevented figure skaters from using music with lyrics in their routines. And the move has proven to be a success. In the past week, the PyeongChang Olympics—the first since the rule change—has seen media outlets light up with commentary, as the event has featured artists such as Beyoncé and Ed Sheeran and songs such as Despacito. In 2017 a French pair team’s bone-chilling performance set to Disturbed’s heavy metal rendition of “Sound of Silence” went viral, generating millions of views.

But while figure skating is enjoying its revival, a host of copyright issues are simmering. The pieces of classical music that skaters historically performed to—the Boléros, the Carmens, and the Swan Lakes—generally fell within the public domain. More recent performances, on the other hand, are often set to songs by artists who are alive and keen to enforce their copyrights. The result: figure skaters may unwittingly be violating copyright law.

As a threshold matter, ice arenas likely qualify as public or semi-public places, which are subject to the Copyright Act. To mitigate liability under copyright law, ice arenas and other public venues often enter into a blanket licensing agreement with performance rights organizations (PROs), such as BMI or ASCAP. However, these licensing agreements are designed for venues where the owners, not the skaters, control the music played.

As a result, these agreements are limited.

First, some of these licenses don’t authorize dramatic performances. This is problematic because, as ASCAP states, “Copyright law does not define the terms “dramatic” or “nondramatic” . . . . [T]he line between “dramatic” and “nondramatic” performances . . . is often unclear and depends on the facts pertaining to a particular performance.” Against that backdrop, it is unclear whether skating routines would qualify as a “dramatic performance” under copyright law.

Second, the license does “not convey the right to publicly perform . . . musical works . . . to persons outside of the Licensed Premise.”  As such, the reproduction of skating routines performed in ice arenas, whether on the television or through YouTube likely implicates the Copyright Act. To that end, from selecting music to performing routines, copyright law is potentially implicated at several junctions in the figure skating “chain of production.”

The next issue is whether skaters and coaches implicate copyright law when they first select the songs for their routines. Generally, the coach or the skater will download songs from iTunes or a similar platform and edit them, often merging two or more songs together, onto a single CD. The skaters and coaches then make multiple copies of this CD to use at practice and competitions. In some cases, the coaches charge the skaters for the copies. This process of downloading of music and creating new CDs may implicate copyright law.

The final issue is who should be responsible for obtaining copyright permission: the skater who performs the routine, the arena that plays the music, or the broadcasters who distribute the performance to a mass audience.

Notwithstanding these copyright issues, the dearth of copyright infringement actions against figure skaters has led some to consider whether figure skaters have carved out a new exception in the fair use doctrine. The more likely scenario, however, is that figure skating has yet to encounter serious copyright enforcement issues.  But the buzz about figure skating routines at the PyeongChang Olympic Games could raise copyright questions that have ramifications that extend well beyond the figureskating world.

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