Copyright applies when a creative expression is fixed in a tangible medium. This has presented questions and problems for certain kinds of creative works, of which my two favorite examples are fireworks and dance. Like a beautiful explosion of color in the night sky, the dancer does not leave a fixed expression in a tangible medium after leaving the dance floor. However, it is possible to fix the dancer’s choreography in a tangible medium—and maybe there is a new way to do that.
“So Keep Your Eyes On Me Now/ The Show Is About To Start”
At the 2018 League of Legends World Finals, some 90 million spectators (including some 23,000 live at Munhak Stadium) were treated to a musical performance that featured life-sized augmented reality projections of fictional pop-star characters dancing alongside physically present, corporeal, non-fictional dancers. This is not the first time a hologram has performed at a live concert: Tupac graced Cochella with his digital and photonic presence in 2012, despite the inconvenience of his death in 1996.
My idle, speculative quandary in the case of K/DA Pop/Stars is whether a dance routine performed by holograms can be registered as choreography for the copyright office. For a lot of reasons, it really doesn’t matter in this case—Riot isn’t going to litigate around this issue (though people may change their tune about copyright), and to the extent that they do need a copyright registration for this, it’s unlikely to matter whether it’s classified as choreography or as a computer program.
Still, it’s an interesting issue to explore because the finer details of technology can sometimes inform how a judge will rule (as in the case of embedded Tweets). Can someone register copyright for a computer program that directs the lights and projection machines to present the images of the hologram in such a sequence and manner as to create the illusion of a dancing individual? It would be interesting to see how the Copyright Office or courts would parse a computer program for a dancing hologram.
Law can take controversial twists around new technology because an adjudicator struggles with the technology involved. Typically, this means someone has either embraced the extreme of refusing to recognize a substantive difference in a new technology, or someone has gone to the other extreme of imagining a difference with a new technology that isn’t supported by reason.
When faced with new technology, the easiest move is to look back at other technology and see if an analogy can be made. The obvious subject for comparison is traditional animation. In broad concepts, there are plenty of similarities between creating a hologram dancer and drawing and animating a dancer. The tools are clearly different- so how similar is a keyboard to a pencil? The uses, purpose, function, and the end results of the tools are similar enough—but there are also very clear distinctions. Copyright law has made an effort to be medium-neutral: it doesn’t matter if a novel is written on paper, caved into rock, or saved in a PDF.
It might be that augmented reality and holograms are simply a new flavor of animation, and, from a copyright perspective, there’s simply nothing new to see here. However, the combinations of new technologies are more likely to produce something substantively new. Anthropologist Thomas de Zengotita is fond of the point that a hurricane is just a lot of breeze—yet everyone treats the two as substantively different. I take it that he means that a sufficient accumulation of non-substantive changes, at some point, creates a substantively new category. This is the core distinction that adjudicators have to make: is a new technology substantively different, or just a different medium for something that is already established?
“So Can You Handle What We’re All About?”
Is a computer program of choreography is substantially different from a recording of a dance? The choreography is the script for the dance. A recording of a dance is how a particular dancer happened to perform the dance. Copyright distinguishes between the sheet music and a recording of the performance. In the case of a computer program that simultaneously generates a dancer and dictates the movements of that dancer, can the performance be separated from the script? The choreography only exists as it is embodied in the performance itself.
This raises a further question as to whether effects of the performance are also part of the choreography: for example, the moment in which Kai’Sa fires a firework-like lighting effect during the performance. If it is part of the code, and the code is the choreography, then this effect is part of the choreography—although it seems like something that should be a production direction, not part of the dance itself.
As unlikely as it sounds, some adjudicators might look to the question of whether the computer code recognizes a difference between pixels and limbs. That is, the question might turn on whether humans can recognize the code as dance instructions. An adjudicator might reason that the computer cannot dance, and so the execution of the code is not the performance of a dance– thus, someone who can dance must be able to interpret the instructions so as to perform the dance.
If we want to make this more interesting, we can imagine this technology combined with an AI that creates new dances. Here, the AI dancer is also the author (unless the author is the rights holder of the program). We can further ramp up the question by putting this AI choreography in a robotic humanoid body and turning it loose on the dance floor, where it transcribes its own choreography as it creates it.
Fortnite Is Dead, And So Are The Copyright Claims (Hyperbole or Prognostication?)
If Riot (I assume Riot holds the rights for the K/DA performance) can register the work as a dance, they will probably need to register the entire dance. The Copyright Office has rejected the attempts to register the brief dances (micro-choreography?) of several plaintiffs who are bringing suit against Epic Games. As I already discussed, these plaintiffs may still have claims under some use of personal likeness laws, but it looks like their copyright claims are unlikely to get off the ground after the Copyright Office denied registration.
The Bigger Picture: “Wish ya luck”
Ultimately, this is exciting because this is what it looks like when technology, culture, and law meet. This is exactly what it is: Epic Games monetizes dance moves that are popular and known and publicized, and before the lawsuits can even be dismissed, Fortnite has already lost its player base to Anthem and Apex (odd twists of identity theft included for added 21st century flavor). These fringe, unimportant, idle explorations form the basis for decisions that affect the bottom line of corporations and the constraints on artistic productions. For the adjudicators of copyright law, this only gets harder: As computers become increasingly sophisticated and increasingly common tools for the production of works of art, the Copyright Office will face increasingly difficult questions.