Could Sporting Performances Be ‘Original Works of Authorhip’ Under U.S Copyright Law?

Could Sporting Performances Be ‘Original Works of Authorhip’ Under U.S Copyright Law?

Although athletes are not commonly regarded as artists, their performance sometimes approaches what can be perceived as a creative activity. Figure skating tricks, synchronized swimming, and freestyle skiing—to name a few—require talent and training as well as skills acquired through experience that go far beyond the purely mechanical movement.  If some of these activities are a mixture of art and sport that are unique to their athletes, could they be considered as authors through the lens of copyright law and benefit from a monopole over their performances?

Section 102(a) of Title XVII of the United States Code provides the subject matter for U.S. Copyright. It states that “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated . . .”^[1] Section 102(a) also provides a non-exhaustive list of categories that are considered “works of authorship”, including “literary works”, “musical works”, “dramatic works”, “pantomimes and choreographic works”, “pictorial, graphic, and sculptural works”, “audiovisual works”, etc.^[2] At first glance, sport performances are not included within this list, at least not expressively. However, the possibility that certain sport activities fall under one of the listed works remains.

Therefore, the question is whether sport performances can be considered “works of authorship” under U.S copyright law. This question is different of whether a sporting event’s broadcast has copyright protection, or whether an athlete can control their publicity rights in name, image, or likeness commercially. Rather, this blog focuses on if an athlete can copyright their actions in a sporting event as a creative performance. Indeed, if they were to be “original works of authorship”, they would accordingly meet the first criteria of copyrightable subject matter. Note that for the monopoly to fully be granted they would still need to meet another criteria: the original work of authorship must be “fixed in a tangible medium of expression”^[3] which is not quite self-evident either. Indeed, a work is “fixed” in a tangible medium of expression “when its embodiment . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”^[4] This means the sporting performance would have to be recorded in order to be fixed in a tangible medium of expression. For the purpose of this blog post, we will only focus on the first copyrightable subject matter requirement: the “original work of authorship”.

Since the 1976 Copyright Act took effect in 1978, choreography is considered copyrightable subject matter.^[5]  Nonetheless, Congress did not define a choreographic work, leaving courts to determine its meaning. To that end, the Second Circuit (which covers New York) follows the Compendium, defining “choreography” as “a related series of dance movements and patterns organized into a coherent whole.”^[6] The Compendium II defines “dance” as “static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.”^[7] Ultimately, the Compendium II states that choreography is “usually intended to be accompanied by music” but “need not tell a story” and need not be presented “before an audience.”^[8]

If certain sports such as ice skating or synchronized swimming are likened to choreography in a fairly obvious way, it is also possible to argue that other sports fall within its scope. Take a soccer game, for example: successions of passes sometimes result in a coherent whole. In this case, the coach would play the role of director providing gamedirection instead of stage direction. If we rely on the Compendium, however, it is not very likely that the choreography definition extends to the sports performances, as soccer actions neither consist of rhythmic dance steps nor are accompanied by music. On this matter, the Second Circuit ruled that a live sporting event is not “authored” as it is a spontaneous event whose performance and outcome are unknown.^[9] Even if the Section 102(a) list is “concededly non-exclusive”,^[10] the Second Circuit concluded the underlying basketball games did not constitute works of authorship as they were “neither similar or analogous to the listed categories”.^[11] In Motorola, the Second circuit argued that “[s]ports events are not “authored” in any common sense of the word”.^[12] While the court acknowledges that there is “a considerable preparation for a game”^[13], they also note “the preparation is as much an expression of hope or faith as a determination of what will actually happen”.^[14] The court continues : “[u]nlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script.”^[15] The Second Circuit alludes to the “broken play” in football that allows playing teams to “gain yardage because the opposition could not expect it” or the “interference with a fly ball” that recently “caused an umpire to signal erroneously a home run” in a championship baseball game as examples of “unanticipated occurrences[.]”^[16]

Analogously to U.S federal copyright law, the Court of Justice of the European Union excluded football gamesthemselves from its copyright protection. The EU Court held:

“[S]porting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Directive 2011/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright.”^[17]

However, these decisions relate to sporting events, rather than sporting performances.[footnote]See, e.g., Motorola, 105 F.3d., at 843 (dealing with the transmission of “real-time” NBA game scores and information tabulated from television and radio broadcasts of games in progress).[/mfn]

In the United States, however, the Supreme Court has held that the requisite level of creativity in Copyright is “extremely low” as “even a slight amount will suffice”.^[18] The Supreme Court finds the term “original” to be referring to a work “independently created by the author (as opposed to copied from other works)”, and that “possesses at least some minimal degree of creativity”.^[19]

This creativity requirement seems to exclude spontaneous and unpremeditated gestures, as the Motorola decision suggested. Does it mean a work is deprived of copyright protection when there is a lack of control in the entire creative process? Jackson Pollock’s painting technique, which consists of throwing paint on a canvas, is a good example of protectible works of authorship that include a great deal of randomness. In the same way, a tennis player’s backhand style may be unique to them. The level of creativity is certainly low but could be akin to a sort of independent creation.

The drastic consequences of admitting copyright claims on athletes’ performances are clear. It would prevent other athletes in the same discipline from using a specific gesture that has been monopolized by the “author-athlete”. It is hard to imagine a basketball player paying royalties to use a basketball trick or gesture that was attributed to a previous player. As artistic as sporting performances can be, it seems difficult in practice to grant them with copyright protection, at least under the otherwise generous U.S. law.