From Elbert Woods’ ‘Ickey Shuffle’ to Stephen Curry’s signature point to the sky in praise after scoring a three-point basket to the iconic ‘Sii!’ move adopted by Ronaldo, sports fans around the world have come to associate their favorite legends with their signature celebratory moves. This, accompanied by a shift of fan following from sport clubs or countries to individual players, has increased the popularity of these athletes and has paved the way for them to market their personality and captivate audiences both on and off the sports arena using uniquely choreographed dances or celebratory moves[i]. However, the problem arises when third parties feed off their popularity by attaching images or sketches of such celebrations to products such as water bottles or t-shirts, thereby unfairly taking advantage of the character that the athletes have worked so hard to create. A solution that presents itself is to allow signature sports celebrations to be protected under copyright law thereby preserving the uniqueness of the celebration and allowing athletes to commercially exploit their own creations, thereby allowing them financial gain especially considering that most of them have short-lived careers[ii].
Protection afforded to Dramatic Work
The primary objective of copyright protection is to encourage artists, craftsmen, musicians, and other creators to make their creations available for public welfare and enjoyment, by rewarding these creators with protection and property rights of and over their creations. The Indian Copyright Act, 1957 extends not only to literary and artistic works but also to dramatic work which includes choreographic moves that are “fixed in writing or otherwise but does not include a cinematograph film”[iii]. Therefore, it is a well-established principle of intellectual property jurisprudence that choreography can be afforded copyright protection. However, fixation is a criterion that must be mandatorily met for a dramatic work to be protected under copyright law and while Western Jurisprudence on fixation adopts a wide approach[iv], Indian Jurisprudence is narrow. The Indian Judiciary has held that a dramatic work can only be afforded protection under Copyright law if it fulfills the criteria of being fixed in writing or concretized in a literary format[v]. Additionally, in the case of Academy of General Education, Manipal and Ors. v. B. Malini Mallya, the Supreme Court emphatically held that a unique form of ballet could be copyrighted as a dramatic work only if reproduced in a literary format[vi]. This exclusion of fixation in the form of a video recording significantly hampers the rights of choreographers and performers who live in a technology driven world but can only claim copyright protection for their choreography if translated to a written format[vii]. However, performer’s rights have been elucidated under the Act and it protects against reproduction, broadcasting, or communication of original creations to the public without the consent of the creator[viii], thereby given “any person who makes a performance” an exclusive right over their creative expression[ix].
Sports Celebrations as Choreography
When Hennry Abromson decided to apply for copyright protection of a sports move called PS:I 1 created by long distance runner Peter Stine, a lot of critics pointed out that celebratory moves in sports may actually lack the qualifications to be considered a true choreography. While it may be reasonably assumed that a single move such as pointing up to the sky may be too insignificant to qualify as a complete choreography, a sequence of moves such as jumping into the air, spinning around and landing on a single foot may be long and complicated enough to meet the necessary qualifications. Interestingly, the European Court of Justice observed in the case of Karen Murphy v Media Protection Services Ltd[x]. that events in sports that have a unique and original character worthy of being protected alongside other forms of creative expression can be granted protection under Copyright law. Additionally, the United States Supreme Court observed that any expression that involves even a “modicum of creativity” shall qualify to be a work protectable by copyright thereby recognising that celebratory moves can be considered as choreography[xi].
Since a player’s celebratory moves take the form of a choreography and are unique and original expressions of their personality as well as passion for the sport, they fall within the purview of the Indian Copyright Act, and within the ambit of Copyright Law in general. Moreover, if dance routines and sequences can be translated into writing, as held in the Malini Mallya Case[xii], a sequence of moves adopted by sportspersons can also be reduced to writing thereby fulfilling both the narrow fixation test under the Indian law as well as the wider tests used in other countries. As a result, unique celebratory sports moves should be afforded copyright protection especially to protect the originality of well-known players from amateurs in the league and to expand the realm of Intellectual Property Jurisprudence in the country.
Is Copyrighting a Sports Celebration Worth It?
While there are definite positive aspects to copyrighting a unique sports celebration, its enforceability can pose a challenge especially considering the difficulty in determining the value of the expression which is a necessary requirement for the award of damages. Justice Holmes proposed a solution to this problem in the case of Bleistein v. Donaldson Lithographing Co[xiii], by observing that the public must be called to decide the value and public appeal of these moves rather than leaving it to persons strictly educated in the field of law and having little or no experience deciphering the true commercial value of creative expressions. However, the issue of proving actual damages will persist on the side of the registrant thereby diminishing the actual practical application of copyright registration for a unique sports move.
Conclusion
A thorough analysis of the copyright protection regime leads to the conclusion that celebratory moves in sports can be copyrighted because their protection is in consonance with the objectives of copyright law, and they generally fulfil the conditions of originality and fixation. Although athletes have previously shied away from copyrighting their moves, the large media coverage of major league sports now as well as the popularity and reputation of individual players, which can be marketed, may be the required nudge towards such a movement[xiv].
[i] Loren J. Weber, Something in the Way She Moves: The Case for Applying Copyright Protection to Sports Moves, 23 COLUM.-VLA J.L. & ARTS 317, 318 (2000).
[ii] Eldred v. Ashcroft, 537 U.S. 186, 212-13 (2003).
[iii] The Indian Copyright Act, 1957, §2(h), No. 14, Acts of Parliament, 1957 (India).
[iv] David Vaver & Pierre Sirinelli, Principles of Copyright Law, WIPO, (Jul. 2002), https://www.wipo.int/edocs/pubdocs/en/copyright/844/wipo_pub_844.pdf.
[v] Anupama Mohan v. State of Kerala, WP (C) No. 22790 of 2015.
[vi] Academy of General Education, Manipal and Ors. v. B. Malini Mallya, Civil Appeal No. 389 of 2008.
[vii] The Indian Copyright Act, 1957, §2(f), No. 14, Acts of Parliament, 1957 (India).
[viii] The Indian Copyright Act, 1957, §38), No. 14, Acts of Parliament, 1957 (India).
[ix] The Indian Copyright Act, 1957, §2(qq), No. 14, Acts of Parliament, 1957 (India).
[x] Karen Murphy v. Media Protection Services Ltd. (2007) EWHC 3091 (Admin).
[xi] Baltimore Orioles, Inc. v. Major League Baseball Players Ass ‘n, 480 U.S. 941 (1987).
[xii] Academy of General Education, Manipal and Ors. v. B. Malini Mallya Civil Appeal No. 389 of 2008.
[xiii] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903).
[xiv] Hennry M. Abromson, The Copyrightability of Sports Celebration Moves: Dance Fever or just Plain Sick?, 14 Marq. Sports L. Rev. 571, 601 (2004).
Author: Rachel Thomas, Christ University
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