Richard Silver explains what all the fuss was about over online videos of the 1970s line dance he created.
In February, Richard Silver, the creator of the dance, persuaded YouTube to remove the video, which the San Francisco engineer shot at a recent convention.
Shocked by the takedown notice by Silver--which was based on a Digital Millennium Copyright Act claim--the engineer, Kyle Machulis, turned to the Electronic Frontier Foundation (EFF), which quickly adopted his cause.
The argument: that the video contained nothing but noncommercial footage of the dance moves, and should therefore be fair use. The EFF quickly filed a lawsuit against Silver on Machulis' behalf.
And while experts said that it's possible to copyright choreography, few thought Silver could prevail in cases of noncommercial use.
On May 22, Silver and the EFF : the EFF agreed to drop its lawsuit, and in return, Silver said he would no longer pursue DMCA claims against anyone portraying his dance steps in a noncommercial manner.
Further, the parties agreed that from that point on, the Electric Slide would be protected under a Creative Commons license granting full noncommercial use rights to anyone wanting to shoot and post video of the dance.
Earlier this week, Silver gave a telephone interview to CNET News.com. His New York attorney, Mark Beigelman, whom he had retained to help with the EFF lawsuit and who seems to have helped Silver understand that he would likely lose in court, unexpectedly insisted on participating in the interview, often stepping in for Silver on responses.
During the interview, the two talked about Silver's position on public use of his choreography, the reasons he got YouTube to remove Machulis' and others' videos and which stars have done the dance the right way on the silver screen.
Q: What's your take on the settlement with the EFF?
Mark Beigelman: We're thrilled with it. It really conforms to everything that Rick has been trying to do with this. It relates purely for noncommercial use, which Rick has never had a problem with. The EFF lawsuit was somewhat of a surprise to him in light of the fact that the only thing he did to try to police it with regard to noncommercial use was with regard to the way the dance was actually done.
Richard Silver: Yeah, my choreography was 22 steps because my birthday is January 22. I wanted something that was uniquely mine, and so I created a dance with 22 steps. And the dances that are being portrayed on YouTube and MySpace and wherever are doing an 18-step dance instead of a 22-step dance. I fought for the last 28 years trying to get it not done as an 18-step dance, and now with all this being presented on the Internet, I had a problem with it.
What did you feel was the harm of this being caught on video at a convention and posted noncommercially on YouTube?
Silver: The only harm is that choreography is being presented incorrectly. By people watching it and learning it from them incorrectly. And prolonging what I've been fighting for for the last 30 years since I created the dance. Every night that I taught the dance I had a dream that someone was going to leave my class and teach it incorrectly and it was going to go around the world incorrectly and I was going to spend the rest of my life trying to correct it. And that is exactly what has happened.
Why do people get it wrong?
Silver: Because of places like (line-dance Web site) Kickit and line dance videos that have been presented by Diane Horner and a few other people that presented it as an 18-step dance without my permission. They posted it to the Internet and made line dance videos and sold them with the incorrect choreography.
And they called it the Electric Slide?
What was your reaction when you found out the EFF was filing a lawsuit?
Silver: I was shocked. I couldn't understand why they would even be involved in this. I had gone on YouTube and found a number of people who were putting up notices where they were teaching line dancing. I noticed that there were some videos of dance classes where a teacher had a bunch of students and was teaching the dance incorrectly and eventually I just went through and (got YouTube) to pull them all off.
Beigelman: Rick is not a lawyer. He is a choreographer artist and his objection from day one was not just use of the dance. I think it was misinterpreted by many that his objection was to (any use of) the actual dance. But if it was done properly, if it was done with 22 steps, he had no objection.
Silver: There were a number of videos that I left on, that had 22 steps. I only pulled the ones off that were doing it incorrectly.
Beigelman: You know, we've both come to the conclusion that the more people that do it in the right way, in a noncommercial way, on the Internet, it's phenomenal for the dance. It only makes Rick's creation even more popular and valuable and more part of the American cultural mainstream. The issue of whether or not people learn it or get to know it in a 22-step version or an 18-step version is something that I think we're best to kind of deal with in more of an education realm than just pulling things off the Internet. And that that was the spirit by which Mr. Silver and I negotiated with the EFF.
What was the rationale behind agreeing to this Creative Comments arrangement?
Beigelman: The only thing that we really would object to in terms of the use of the dance is it being used in a commercial way. So, once we established with EFF that the objection was not necessarily the use but more of what this crowd (in Machulis' clip) did and how they did it, then we realized that we had really no argument with their position. They made some suggestions as to how we could further support the fair use, which we were very much in support of anyway, and I encouraged Rick to be very open-minded with this. I think that it was a terrific solution, a win-win for everybody.
What about the inevitable situation in the future where someone at a wedding shoots a video of people doing the 18-step version and posts it on YouTube, and they have no idea there's been a settlement? Are you going to say, "Hey, this is the wrong dance, take it down?"
Beigelman: If it's used in a noncommercial way, we acknowledge that we have no right to ask them to take it down or to have it taken down. We may on certain occasions just inform them that, "By the way, it's done improperly." What's more important for Rick is to make sure that the commercial exploitations that actually teach the dance do it in the proper 22-step (form), and we have some control over that. Going after noncommercial use of the dance is a waste of time.
You're saying it's a waste of time--but that's precisely what happened with Kyle Machulis, right?
Beigelman: Yes. It was a waste of time and a mistake, and it took perhaps a lawsuit and Rick getting an attorney helping him promote the commercial exploitation in a proper way to freely acknowledge that.
As a contact creator, what is your take on the EFF's position that we're in a new era and that new technology really is forcing us to re-examine how people share information?
Silver: I think in many ways they're doing a great job and otherwise I think they're publicity hounds and picking at straws. But they certainly opened my eyes to what I can and can't do with my copyright.
Do you feel like that's a good thing?
Silver: In many ways, yes. I still have a problem with people doing my choreography incorrectly, but we're working through that and I now have a great lawyer who's helping me control this.
So, from your perspective, who in the movies has done the dance the right way and who hasn't?
Silver: Joe Pesci in The Super and The Parkers TV show, episode eight, are the only ones who did it correctly. Those were both before 2000.
But there have been movies where it's been done incorrectly?
Silver: Since 2000, there have been a number of movies, (including) Keanu Reeves in The Replacements.
And have you contacted the producers?
What's happened there?
Silver: I sent them a bill and they're waiting for the copyright office to send me my paperwork to pay it.
And in the case of The Super and The Parkers, did you want to get compensation for the use of the dance there?
Silver: Yes, I've written to both, and we're still in negotiations.