Last Week in Tech Policy: #60 Skating Around Copyright

(By Sophia Galleher, Colorado Law 2L)

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 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 remnants of the past.

Ma’s routine epitomizes the impact of a 2014 rule change where the International Skating Union, in an attempt to inject life into a sport with waning popularity, agreed to allow skaters to use music backed by vocals in their routines. And the move has proven to be a success: within hours of his performance, Ma, an otherwise unremarkable figure skater—an 11th place finish at the U.S. National Championships in an Olympic year is hardly newsworthy—became an internet sensation, lighting up the Twitter feeds of both skaters and non-skaters alike. Ma’s routine is not alone. In 2017 a French pair team’s bone-chilling performance set to Disturbed’s rendition of “The Sound of Silence” went viral, generating over 30 million views.

But while the figure skating world is abuzz with excitement over the sport’s future, the 2014 rule change has simultaneously ushered in a host of copyright questions.

The pieces of the classical music that skaters historically performed to—by composers such as Tchaikovsky, Chopin, and Beethoven—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 upshot: figure skaters may unwittingly be violating copyright law.

As a threshold matter, under the Copyright Act, ice arenas likely qualify as public or semi-public places, which are subject to copyright law. 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.” . . . the 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 in practice and competitions. In some cases, the coaches charge the skaters for the copies. The process of downloading of music and creating new CDs may implicate copyright law.

The final issue 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 issues.  And the upcoming PyeongChang Olympic Games—the first to feature skating routines set to music with lyrics—may just be the event that will bring these copyright issues to the fore,  which could have ramifications that extend well beyond the figure skating world.