No protection for staged performance which lacks originality

The Norwegian Supreme Court has issued a judgment in a case regarding copyright protection of a performance based on a mythical character from Norwegian folk tradition.

Flåmsbanen is a former commercial railway that is now operated as a tourist attraction. The company running the business (Flåm Utvikling AS) paid a production company (Hybris AS) to produce and direct a hulder performance to take place by a waterfall near which the railway ran. (A hulder is a wicked or mischievous wood nymph who appears to be beautiful but has a cow’s tail. Hulder appear from inside mountains and hills to entice young men, particularly by singing and dancing.) The performance was meant to be watched by the passengers as the train stopped by the waterfall.

The performance, which lasted two minutes, began with an old Norwegian folk tune “Nøringen” played on a fiddle, the sound seeming to come from the waterfall. Then a woman’s voice was heard singing a text belonging to this folk tune, with the refrain “I see you, I see you, but I can’t come to you”. Simultaneously, a female figure appeared from behind a stone situated on a plateau near the waterfall, seeming to ascend from the waterfall. While apparently singing, she walked back and forth making simple, calm gestures. She then returned to her hiding place, apparently down into the waterfall. Immediately after her disappearance a similar figure appeared about 50 metres further up from where the first figure appeared, moving about for a while before disappearing. The first figure then appeared once more in her initial position. After a short while she stopped and waved slowly to the audience, before disappearing again. Throughout the performance, the folk tune was heard in the background.

The performance was a great success. However, a dispute arose between the company running the railway and the production company as to which party had rights to the performance. The production company claimed royalties for the performance, as a percentage of the income from the train tickets.

The Court of First Instance and the Court of Appeal both found that the performance was protected by copyright. The Supreme Court, however, reached the opposite conclusion.

According to Section 1 of the Copyright Act copyright is accorded to “literary, scientific or artistic work of any kind, irrespective of the manner or form of expression”. The act then goes on to give examples of various types of copyright-protected work, including “works for stage performance, dramatic and musical as well as choreographic works and pantomimes”.

The Supreme Court stated that the performance did not narrate a story; it aimed only to portray the hulder as described in Norwegian folk tradition. The perception of the hulder is not based on one particular tale; accordingly, the production of a stage performance portraying the hulder will not be in the nature of staging a pre-existing work, but will still be very similar to such an activity. Because of this similarity, the court held that the performance would need to meet strict requirements as to originality.

The Supreme Court stated that the hulder figure portrayed in the performance is based on known elements of the folk tradition. She has long hair, presents a mystic attraction and is alluring but, at the same time, unattainable. The movements made by the hulder during the performance were simple and unoriginal, while the song was drawn from Norwegian folk music. Similarly, the costume – a long and wide red dress – did not represent anything original.

On this basis the Supreme Court found that the requirement of originality had not been met. Although a hulder performance presenting the same story had never previously been put on, the combination of the elements in the performance did not make the performance sufficiently original in character. If an interpretation of a figure based on folk tradition that does not add anything substantially new to the figure were to be subject to copyright protection, this would entail a monopolisation of a piece of the folk tradition, which in the court’s opinion was undesirable.

Accordingly, the Supreme Court concluded (with a four-to-one vote) that the performance was not subject to copyright.