Improvisational Creativity: Protection and Appropriation Challenges for Ephemeral Media

Some creative mediums are known for a high degree of extemporaneous expression during live performance—like comedy, and jazz, which is especially important in our host city of New Orleans. This presents unique challenges in copyright, given the fixation requirement, though other forms of protection or remedies against unauthorized use may be available. Further, performing communities themselves may (or may not) have norms to establish what constitutes misappropriation, and informal or “extra-legal” redress.

This panel will feature examples of live improvisational performance and explore:

• The role and importance of improvisational creativity in certain media;
• The fixation requirement for purposes of copyright;
• The role of federal and state laws (e.g., 17 USC 1101 – unauthorized fixation);
• The degree of protection, and/or limitations on protection for some kinds of works, like choreography;
• The merits and outcomes in recent dance cases; the availability of remedies to limit (or not) to restrict unauthorized live streaming of live performances (Wolfgang’s Vault litigaiton); and
• The challenges identifying and potentially protecting derivatives.