'Electric Slide' on slippery DMCA slope

Kyle Machulis, an engineer at San Francisco's Linden Lab, said he received a Digital Millennium Copyright Act takedown notice about a video he had shot at a recent convention showing three people doing the Electric Slide.

"The creator of the Electric Slide claims to hold a copyright on the dance and is DMCAing every single video on YouTube" that references the dance, Machulis said. He's also sent licensing demands to The Ellen DeGeneres Show, Machulis added.

Indeed, Richard Silver, who filed the copyright for the Electric Slide in 2004, said on one of his Web pages that the DeGeneres Show had been putting up a legal fight as he tried to get compensation for a segment that aired in February 2006 in which actress Teri Hatcher and other dancers performed the popular wedding shuffle.

The 1998 Digital Millenium Copyright Act governs copyright infringement as well as technology whose purpose is to circumvent measures intended to protect copyrights. Under the DMCA, rights-holders can complain to services like YouTube that content uploaded by users infringes their copyrights.

Silver did not respond to an e-mail sent Friday asking for comment and did not answer several phone calls to his Groton, Conn., home. A representative for the DeGeneres Show declined to comment.

But on the YouTube page Silver himself posted showing the Electric Slide, he wrote, "Any video that shows my choreography being done incorrectly is being removed. I don't want future generations having to learn it wrong and then relearn it as I am being faced with now because of certain sites and (people) that have been teaching it incorrectly and without my permission. That's the reason I (copyrighted) it in the first place."

YouTube has been dealing with a slew of DMCA takedown claims recently. Viacom on Friday demanded the service remove a hundred thousand videos it claimed infringed its copyrights.

Some may find it odd that a dance could be copyrightable, of course. But according to Jason Schultz, a staff attorney with the Electronic Frontier Foundation, dance moves can definitely be protected under copyright law.

"You can copyright the choreography for dances," said Schultz, "and then enforce the copyright against anyone who publicly performs the dance."

Does that mean that everyone who giggles their way through the Electric Slide with the wedding videographer shooting away is violating copyright? No, but the videographer could be at risk. But Schultz said he believes Silver's claims against Machulis and others who have posted videos on YouTube may be questionable.

"Someone who performs it noncommercially or adds their own artistic flair to the dance has a pretty good fair-use argument that their performance is noninfringing," Schultz said.

Because there are only about 20 seconds of actual footage of people doing the Electric Slide out of Machulis' nearly five-minute video, Silver's claim may be on shaky ground, Schultz said.

"Here, it's such a small piece of the video, and such a small piece of the dance (that) I think if (Silver brought) a copyright lawsuit, he would lose," he said.

Joe Pesci, Electric Slide master
Machulis, who has reposted his video on another online site, said he is considering a counterclaim on the theory that Silver's copyright applies only to a videotape of his original tutorial of the dance. But Schultz said the format isn't a concern in this case.

A blogger named Rob Lathan also recently said he got a DMCA takedown notice from YouTube.

Lathan had posted a video of himself dancing the Electric Slide on stilts on NBC's Today Show. Now, he said on his blog, his video had been removed by YouTube after a complaint by Silver. But Lathan seemed nonplussed by Silver's complaint.

"I'm gonna fight him with everything I've got," he wrote. "And you know what that is, right? My trusty pair of shiny red stilts."

It appears Silver has for several years aggressively defended his copyright on the dance. In 2004, Silver apparently wrote an e-mail to Donna Woolard, an associate professor of exercise science at North Carolina's Campbell University, demanding she remove a video of the dance from a Web site. He complained the dance wasn't being done correctly on the video, and Woolard took down the video.

Silver wrote, according to e-mail correspondence posted by Woolard, that he had sued two Hollywood production companies for using the dance in several films and that he was now adding her as a co-defendant. It's unclear what happened to the suit.

Interestingly, he also complained that actors in those movies also didn't do the dance right. In fact, of several movies mentioned, surprisingly, Silver said only Joe Pesci, best known for his Oscar-winning role in the gangster classic Goodfellas, performed the dance correctly in the decidedly lesser-known film, The Super.

"I realize that this incorrect version of my choreography has been around for some 27 years," Silver wrote, "and it seems pointless to try and correct it at this time but because of the legal ramifications, my lawyers have suggested that I take this approach."

So does doing the Electric Slide badly protect you from charges of copyright violation? To Schultz, an incorrect version of the dance may still be covered under copyright law as a derivative of the original, but it depends on the context. In the case of Machulis' video, the missteps of the dance probably mean a loss of Silver's rights.

"Slight variations (of the original) are arguably derivative," said Schultz, "but something else, like doing (a dance) out of sequence, you're probably not even getting close to his copyright."