World’s first treadmill dancing legal dispute

The Scotsman

Watching the current television advert for Berocca vitamin tablets, you could be forgiven for thinking, “hmm, dancing on running machines, that’s original”. Unless, of course, you are familiar with the music video for Here It Goes Again by American band Ok Go.

Released in September 2006 and viewed over 32million times on YouTube, it features all four members of the band. Dancing. On running machines.

Ok Go’s video won a Grammy and is an elaborately choreographed, fixed camera, single take masterpiece. The Berocca advert cuts between a vitamin tablet dissolving and people rising from tables to dance on running machines in a city centre. The songs are different. But in what may become the world’s first legal dispute over treadmill dancing, an issue of copyright infringement could be determined by comparison of the videos’ individual dance moves.

A source close to the band claims “there was extensive negotiation to use Ok Go” by the JWT advertising agency on behalf of Berocca’s manufacturer Bayer. But this “didn’t bear fruit” and JWT “had no authorisation” to reproduce the choreography. JWT and Bayer have thus far ignored all appeals for a statement.

With Ninjinskian timing, this Friday is World Intellectual Property Day. It is also less than a week since JK Rowling began a legal action in New York against the unofficial Harry Potter Lexicon, claiming that the “sloppy, lazy” encyclopaedia infringed copyright by taking material from her novels “wholesale” and that publication would “open the floodgates” for countless publishing rip-offs.

In March, an advert for the breakfast cereal Sugar Puffs angered fans of The Mighty Boosh when it seemed to show the Honey Monster “crimping” in the style of comedy duo Julian Barratt and Noel Fielding. A “crimp” is perhaps best (barely) understood as a staccato rap performed by a fashion victim and a jazz aficionado, or in extreme cases, with a mystical shaman and gorilla too.

The Boosh’s management company, PBJ, have issued a complaint to the Advertising Standards Agency and Barratt and Fielding performed a derogatory crimp at the Honey Monster’s expense on BBC 3’s recent Mighty Boosh Night.

Father Ted and The IT Crowd writer-director Graham Linehan empathises. He and Arthur Mathews, co-creators of the BBC sketch show Big Train, contemplated suing over adverts for Sony Playstation 2, which they felt infringed copyright of their most celebrated sketch, a spoof wildlife sequence showing jockeys in the African savannah being hunted by The Artist Formerly Known As Prince (that name itself part of an infamous intellectual property case). The Playstation commercials featured various ‘herds’ of jockeys, golfers and ventriloquist dummies in a safari setting.

“We were told it was a win-win situation for advertisers if you sue because it brings attention to them and their product,” Linehan explains. “And theirs was so badly done and unfunny we thought it wouldn’t be remembered.

“I’ve done a few ads myself, worked with some nice creatives and they always seemed original. But there are a lot who simply watch telly, go to art shows and write down things to steal.

“After I made Big Train, advertisers would ask if I wanted to direct an ad. I’d see their sketch and it would be very Big Train, so I would automatically say no. Then a few minutes later, they would phone back and ask for a tape of the show, so they could use it as a visual aid to rip me off!”

Under The Copyright, Designs and Patents Act 1988, the crucial judgement to be established is whether a “substantial part” of the original work has been reproduced.

In 1998, film director Medhi Norowzian launched an unsuccessful lawsuit against Guinness and the Irish advertising agency Arks over the commercial Anticipation, which featured actor Joe McKinney dancing in expectation of a pint to the tune of Guaglione by Perez Prado. Norowzian had previously submitted a showreel to Arks that included the short film Joy, which showed a man performing an exuberant dance on a rooftop. Arks submitted a script and storyboard based upon the film to Guinness and Norowzian was approached to direct. Unwilling to “commercialise” an existing idea, Norowzian refused and a new director was instructed to create something “with an atmosphere broadly similar to that portrayed in Joy”.

Norowzian lost his appeal against a High Court decision dismissing his copyright infringement claim, because the court decided that the film and not the dance was the original work and Anticipation’s jump cut editing made it substantially different to Joy.

“The important distinction,” explains Colin Hulme, a partner in the Intellectual Property and Technology team of law film Burness LLP, “is that copyright only protects the expression of the idea, not the idea itself. The courts don’t look at the quantity, the amount of work taken, but the quality of what’s taken. For example, the opening bars of a famous song might comprise a substantial part because they could be enough to identify the track.

“If a substantial part of the dance moves in a video were copied in another video that could well be copyright infringement. This was looked at in the Guinness advert and there was very close discussion of the similarity of the moves. But it was decided that what made it exciting was the chopping of the footage, the editing.”

Hulme stresses that this is “a very complex area of law, but it is fairly well settled.
“Difficulties arise because technology is changing and the law isn’t keeping up, especially in regulating the transfer of intellectual property over the internet.”

Most people have never heard of Joel Veitch. But there is a good chance you may know his work from television and viral advertising on the internet.

“Obviously, I didn’t invent singing animals, so it’s difficult to explain what makes my animations distinct,” the commercials director says of creations that include the singing kittens on the current Crusha milkshakes adverts and singing penguins for Switch/Maestro.

In January last year, Veitch reached a settlement with Coca-Cola after an advert appeared in Argentina that used his unsigned band 7 Seconds of Love’s song ‘Ninja’ and a video full of kittens. The band partially used the settlement to record their debut album, Dangerous, Dangerous, released this summer.

Veitch was once threatened with a lawsuit by Gullane Entertainment Inc. for uploading a parody of Thomas the Tank Engine to his website.

“That were actually very nice about it because it was horrible,” he recalls. “They sent me a letter saying ‘look, this is our intellectual property, it’s a children’s thing and we understand this is parody. But it’s really inappropriate so we want you to remove it’. Which was fair enough and I did.

“Interestingly, it was made before I started doing this professionally. A lot of artistic content on the Internet is non-commercially made, a million music tracks and photos used without permission, with no justification under IP law. But no-one worries about it because you’d be crazy to pursue it legally.

“The flip side is that while nothing exists in a creative vacuum, there’s been a perception that if something is on the internet it’s somehow in the public domain and you’ve relinquished your rights to it. The media always moves quicker than legislation.”

Proof of this comes in the form of 18-year-old Nick Haley, who created his own ‘touch’ advert for the Apple iPod and posted it on YouTube. Instead of suing the British student for infringing their intellectual property, publicity shrewd Apple bought the rights to his ad, (which, presumably, they already owned) and faithfully reshot it, broadcasting it on US television.

The internet is also a protest forum for artists who believe they’ve been plagiarised, with websites like youthoughtwewouldntnotice.com, “dedicated to pointing out those thing's [sic] that give you that feeling of 'haven't I seen that somewhere before?’"

“When you’re talking about individual artists up against multinational brands, it’s not a fair fight, the law is almost inaccessible,” claims Veitch. “In practice, it’s very much weighted for the benefit of those who can afford lawyers and risk going to court.

“But if you’re a popular artist, you can mobilise a groundswell of support in your favour via the Net in a way that you couldn’t before. It’s possible to stamp your feet and make enough noise to get attention.” Read more!

Kris Kristofferson and Roddy Hart

The Scotsman

Roddy Hart’s first studio album, Bookmarks, featured two tracks with country music legend Kris Kristofferson. The 28-year-old has been Kristofferson’s UK support act since 2004 when the veteran singer-songwriter performed his first acoustic concert in Glasgow while filming The Jacket with Keira Knightley and Adrien Brody.

Their latest tour begins in Aberdeen tomorrow and concludes at the Royal Albert Hall in London. Hart plays the Leonard Cohen International Festival in Edmonton in July and releases a new album this autumn.

Hart on Kristofferson

'At the South By Southwest Festival a few years ago, I found Kris playing a secret gig nearby and asked him if he would play Here Comes The Rainbow Again. Unbeknownst to me, it was also a favourite of Johnny Cash, who had just died. Obviously no-one in the building knew who I was, but when he said: “this is for Johnny Cash and Roddy Hart” it was a special moment. I had to check what I was drinking to make sure I’d heard right.

I think of how he landed a helicopter on Cash’s lawn to get his attention, then ended up singing with him and Cash recording his songs. In a way, I’ve landed a helicopter on his lawn, asking him to listen to my songs. That he was at Oxford, then became a janitor at Columbia Records, that he had such a varied career before establishing himself is such an inspiration.

I was starting out when I met him and he’s been there throughout my career. Those early gigs, the spectacle and the pressure, it was the first time I’d been in such a huge show with an established name so there were real nerves. He knew I was unsure how my songs would be received but he saw something in me that meant he didn’t discount me.

He does well in Scotland because of the folk tradition here. Folk is different to what we do, but it’s not that different. Bookmarks was definitely country influenced and I think Kris brought some of that, though I don’t think either of us would define ourselves as country. My next record is a bit rockier, pulling in influences like Springsteen and Tom Waits.

I wrote the song Home between those first shows I did with Kris in Glasgow and Edinburgh. Seeing him up there alone, singing some of his most famous songs, it stayed with me as I was writing. When I first played it he picked up on it immediately, mentioning lines he loved. He later told me he wished he’d written it. I was pleased, obviously, but back then I hadn’t realised how much it was a Kris Kristofferson song.

I sent him it to record for that reason. And My Greatest Success too because I had Eddi Reader on it. I think she’s the Scottish Emmylou Harris and I thought it would be interesting to combine their vocals. Kris’ voice has such gravitas. The moment he comes in during Home’s second verse, you just know straightaway that it’s him.

I’m not the best singer in the world but my voice is distinctive, you can tell it’s me singing. It’s the same with Kris and all those guys he’s associated with: Johnny Cash, Willie Nelson, Waylon Jennings, John Prine. None of them have a technically perfect voice. But they’re perfect because they’re distinctive.

He’s taught me that you need to be true to yourself as a songwriter, you don’t need to chase record deals, fads or trends. That’s how he’s lived his life and the career I have is in large part down to him, because he put a seal of approval on it.

A few years ago I was playing in New York and got a call from Sofia Coppolla’s casting director for Marie Antoinette. I was nervous, but I got down to the last two or three for a role that Keira Knightley’s then boyfriend Jamie Dornan got. I never saw myself as a count but I think he got to bed Kirsten Dunst, so I was definitely interested.

If I could grow a beard I would, but my moustache doesn’t meet the rest of it properly. It’s like Springsteen’s or Dylan’s in that respect, rubbish. Every man wants to grow a beard but not every man can. Kris is a real man though, a credit to beard wearers.'

Kris Kristofferson was born in Texas to a military family, excelling at sports before winning a Rhodes scholarship to study English at Oxford. He became a US Army helicopter pilot, then resigned to pursue songwriting, working a series of odd jobs before his songs started being recorded in the mid-sixties by the likes of Johnny Cash and Janis Joplin.

He released his first album, Kristofferson, in 1970 and made his film debut, Cisco Pike, with Dennis Hopper in 1972. The 71-year-old continues to make films and record, releasing This Old Road in 2006. He wants his epitaph to be Leonard Cohen’s: “like a bird on the wire, like a drunk in a midnight choir, I have tried in my way to be free.”

Kristofferson on Hart

'Celtic countries have always been good to me. The audiences, for some reason, seem suited to what I’m doing. I imagine that’s why I like Roddy’s music too.

The promoter for the first tour suggested him as support and gave me some of his songs. It’s the sort of music I like, but he was a little tentative about performing back then. He wasn’t sure he wanted to commit to it. I guess he had his degree as a lawyer. But I told him: ‘the world has enough lawyers. We need good songwriters.’

Roddy reminds me of myself because he’s so serious about music and primarily considers himself a writer. I reckon his name is appropriate because he’s got a lot of heart and so have his songs. But I think he’s got a better voice than me, I think he’s selling himself short there. My voice was so unusual that they didn’t want me to sing on my own demos when I first went to Nashville. Eventually I did though, because the publisher couldn’t afford anyone else to sing them!

I sang on Roddy’s songs because they have good melodies, simple as that. I particularly like Home and was pleased we did it live together the last time I was here. I hope we get to record again too because I think we harmonise well. If I’m still above ground that is. I’m getting pretty old.

It took a while for my career to take off. But there were people who helped me out, like Johnny Cash, who gave me the exposure I needed. I’ve always tried to do the same for writers I like, as I did with John Prine and Steve Goodman. I put them on my show at a New York club I was working and they got record deals out of it. I’m sure Roddy is going to be successful. He’s certainly got better in the years I’ve known him. My daughter, whose opinion I respect because she’s come to like Bob Dylan as much as I do, may well be his biggest fan.

When I first started performing at the Troubadour in Los Angeles, a woman who worked on The Johnny Cash Show in Nashville got me a gig opening for Linda Ronstadt. It went well, so they had us over for a week and a bunch of film people would hang out there. I’d never thought of acting but Harry Dean Stanton used to be there, singing Mexican songs, and he brought me my first script and helped me with the screentest. I didn’t even know he was an actor when I met him, he just hung out there and practically lived at Jack Nicholson’s.

If Roddy is lucky enough to be around film people, I’m sure he could do it too. I’ve seen the reaction he provokes, not just in my own family but with the kind of people I play for. I think he’s got the chance to do everything I did anyway. Could he use a beard to make him uglier? Sure, but I think his looks are something he’s got going for him.'

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Ian Cognito Live

Chortle

'That could be another club I’m banned from,’ Ian Cognito laments as he takes the Glasgow Stand’s stage for the third and possibly final time to close this ill-planned, chaotic yet captivating evening of comedy, music and semi-nude gymnastics.

For once, the temperamental cockney is only partially to blame, with his support act and backing band Skate Naked taking a substantial share of the credit for making this event what it was, a truly entertaining health and safety nightmare.

To begin, we get classic Cognito, 49 years old now, but with the Guinness and the devil still in him. An attractive female latecomer fails to escape his appreciation and he quickly establishes his aggressive rhythm of puncturing liberal sensibilities. Barking out his greatest hits – from taking the disabled to task for parking in ‘normal’ car park spaces to delivering an emotive entreaty on domestic violence, then suggesting Posh Spice deserves a slap – it’s deliciously nasty stuff and the crowd laps it up.

With his greying beard, the sheer violence of Cognito’s rant against the increasing number of blades on razors elevates his diatribe above the usual stock observations on this well-shorn topic, with a killer denunciation of Gillette’s ‘Best A Man Can Get’ slogan to round it off. Admonishing his kids, decrying a career that has never let him near television, veering between the self-pitying and the explosively defiant, there’s a Lear-like charisma to this menacing old bastard, even as he catches himself repeating material, snarling at the front row for noticing.

After a brief interval, it’s the turn of Skate Naked. Comedy works best in rooms with low ceilings, like the Stand. Unfortunately, the same can’t be said for acrobatics. Street performers in G-strings, Pete Gazely and Paul Ackerman are best described as the Cesar Twins meets Jackass… with flaming torches and whips. Suffice to say, their failures are often more entertaining than their successes and there’s a grim fascination in wondering whether a man will indeed light his own pubic hair.

Successive handstand arrangements have the front rows steadily retreating and the club’s sound equipment buffeted. Then Gazely inflates a pink rubber glove to bursting on his head using nothing but his nostrils, as bizarre a sight as you might ever wish to see. His efforts to whip chopsticks and a lit cigarette from between Ackerman’s arse dissolve in calamitous farce, with the club’s security staff moving swiftly and angrily to extinguish the latter, but not before the whip brings a series of ominous looking cables down from the ceiling. Time for another interval and running repairs.

Reappearing as a three-piece band, Cognito leads on guitar and vocals, the rock ‘n’ roller he maintains he always wanted to be. Although there’s an element of self-indulgence here, Cognito has a decent, lusty voice and the songs’ sentiments don’t really differ from the stand-up interspersing them.

Kettledrum samples provide a calypso vibe to a track called Life, full of advice like ‘never French kiss a leper’, while among all the bluesy wails of self-regret and rails against the number of comics who’ve turned teetotal, one song stands out simply for its howled ‘Oh no! Oh fucking no! Oh no! Oh fucking no!’ refrain.

Oscar Wilde is evoked in the pursuit of a desperate bunk-up and the evening ends with a proper old knees-up, the audience chorusing along to the notion that ‘you can really get rich with a nice pair of tits’.

‘We’ve never done this show before and we may never do it again,’ Cognito admits afterwards, which would be a tremendous shame if true. There was a compelling anarchy to this show, harking back to an era when stand-up was less slick and less carefully stage-managed, and it’s to be hoped that Cognito and Skate Naked make good on their threat of taking this shambles to the Edinburgh Fringe.

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