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Who Owns Contact Juggling?

By Eric Bagai

There is no question that Michael Moschen is one of the great artists of our time. His work with crystal balls alone will be remembered and looked to for inspiration as long as there are jugglers and videotape.

James Ernest, in his book Contact Juggling, has provided us with the first significant analysis and lexicon of an art form he calls "contact juggling," and with it offers a basis for the exploration of some of what Moschen does. Shouldn't we also recognize him?

Even though only a small portion of their work overlaps, some claim Ernest has disregarded creative ownership and stolen proprietary material.

The issues raised in the introduction to the article by Michael Moschen (JW Fall 92), by the article itself, by his presentation at the 1992 IJA Festival, and concerning the review of Ernest's Contact Juggling (Ted Alspach, JW FaIl 91), are central to the IJA, and central to the performance of any art.

What belongs to Michael Moschen? What belongs to James Ernest? And what determines ownership, and when is it acceptable to use another's original work, and where might the ethical, moral and legal lines be drawn?

Let's start with the law. (Please remember that while I have 18 years of experience in literary and performance copyright, I am not a lawyer, and not qualified to give legal advice.)

A performing-arts copyright is available to anyone who videotapes an original performance and includes a title shot with the copyright bug (C) and the appropriate phrases. Then the performer may send the tape either to himself or to the Library of Congress with the necessary forms and fees, and he will "own" that performance. This means that no one can do substantially the same performance without paying a royalty or a penalty for it.

(Write the US Copyright Office, Library of Congress, Washington D.C. 20559, and ask for Form PA and all relevant circulars. Also check your local library and the US Government Printing Office in Boulder, Colo., for further information. You may also want to see a lawyer who specializes in this area.)

What is an original performance? The basic three- and four-scarf routine outlined in the first 21 pages of Dave Finnigan's The Complete Juggler is not copyrightable as a performance because it is basic to juggling, and as an unadorned performance piece it is in the public domain (though his account of it is copyrighted as a literary work, and can't be reprinted without his permission). That is, it belongs to everyone.

But if a fat, nebbish-like guy performs Finnigan's outline, and does it with a serious, self-important and overly dramatic demeanor in time to a snappy Latin tune, that is probably a copyrightable performance.

Can you copyright a particular juggling move or concept? Probably not, unless it is inherently different from anything done before and not derived from or related to a previously known move or concept.

Can you envision a move that has no precedent? What about Moschen's trianglebounce routine? What about his work with hoops? Possibly, but not likely, because only the aesthetic perception, the idea (which can not be copyrighted), is original. Probably only Moschen's routines - what he does with his materials - are "original" for the purposes of copyright.

Christopher Majka, former IJA publications director, (Two-Ply, Oct. 92, and earlier on Internet) feels it was wrong to print Ted Alspach's review of Contact Juggling without dealing with the issue of creative ownership of the material in the book. But the issue is only relevant if you assume that Moschen was the first contact juggler.

But ball rolling seems to be something frequently and independently discovered through time, though there is no question that Moschen has considerably advanced the form. I've even "invented" several moves which I've later seen Moschen perform, and then heard of others having used them before seeing either of us. This phenomenon is common among jugglers.

Again, what then, belongs to Michael Moschen? Within the law, only his performances. Anyone who, for commercial or professional gain, copies a significant sequence of moves as performed by Moschen, has committed a criminal act and should expect to be stopped. But anyone who attempts to learn from Moschen's work, or who uses one or more balls to examine and explore the possibilities of movement that Moschen first performed, has a perfect right to do so.

What about "creative ownership"? Is it right to use moves that Michael Moschen (or anyone else) has developed and incorporate them into your own original performance? I believe it is, but only if you assimilate them into your own style and aesthetic, and thereby make something new - something that is not Michael Moschen's, but distinctly your own.

For example, someone would have to take Moschen's triangle-bounce work far beyond, or in an entirely different direction from Moschen's, for it not to be an obvious (though perfectly legal) rip-off.

The important thing for any artistic creator is to have something in mind, and to try to show it in his or her work. Moschen uses the elements of contact juggling in quite idiosyncratic ways, depending heavily on illusion based on tricks of gestalt and cognitive psychology.

For example, notice how, when doing his four-ball palm-circles, one ball always appears at rest; even when the top ball is exchanged for one of the lower ones, the whole revolves about one seemingly stationary ball. This signature effect of one object appearing motionless relative to other moving objects or to the performer's own movements, is found throughout Moschen's work, and distinguishes him from all others. Indeed, it is as much a function of his choice of featureless, symmetrical objects as it is of his manipulative skill.

The prototypical illusion occurs when you hold a crystal in your fingertips and turn your hand around it without moving the crystal from its axis in space. Related illusions are found in his work with hoops, horns, rod and hoop and multiple rods.

None of this is mentioned in Ernest's Contact Juggling. Ernest also describes a form of contact juggling with plates, much of which he learned from Rhys Thomas (a fine artist in the Northwest), but did not name him or attempt to touch on the style and grace Thomas brings to these techniques.

Attribution is a problem, and someone is always slighted with an author's decision on where to draw the line. Attribution is a problem with artists, as well, especially when they are emotionally bonded to their work. Michael Moschen is understandably protective of his creations - this is what an artist does.

But James Ernest has made the first attempt to define and distinguish contact juggling methodically from other forms, and to distill the elements and establish the vocabulary of contact juggling, specifically so that others might learn from it and thereby advance the art form.

This is what a teacher does. This is what a philosopher/scientist does. And James Ernest should be honored for doing it. We owe both Ernest and Moschen our respect and our gratitude for giving us their gifts.

They also owe it to each other.