Name of author: Simran Kaushal – 5th year law student, Jindal Global Law School
Most of the athletes have a signature celebration move they do either on scoring a goal, a basket, or hitting a six, across all sports, such as Ronaldo’s “Siuuu,” because of which there has been a long discussion on the copyrightability of such celebration moves but this also makes one wonder if signature sport moves such as Jordan’s fadeaway can be copyrighted too. This paper aims to explore the legal possibility of copyrighting signature sports moves while looking at the feasibility of the same.
Sports under the Copyright Act
Section 13 of the Copyright Act defines copyrighted works as original literary, dramatic, musical, artistic works, cinematograph films, and sound recordings. There is no mention of sports anywhere in the list mentioned in this section, leading to the contention on copyrighting areas in sports. There are sectors within sports such as broadcasting of matches that are covered under Section 13, but only games have been the subject of worldwide debate, particularly the idea of signature sports moves being copyrighted.
To begin, there have been cases that have investigated whether a match can be copyrighted. The case of Baltimore Orioles v Major League Baseball Players was about the MLB Players claiming that they had a right to publicity for the video recorded baseball games and hence they should be compensated for them. Whereas the MLB Clubs claimed that the copyright for the video recorded baseball game lies with them giving them all the control. One of the major issues discussed regarding this case was whether a baseball game could be copyrighted. The Court found that the prerequisite of fixation is fulfilled because of the video recording of the performance, although for the requirement of creativity, it did not explicitly decide that a sports performance involves creativity. However, the Court mentioned that for a work to be copyrighted there only be a modicum of creativity involved, which could be considered a hint towards the possibility of creativity in the performance. But in holding that the MLB Clubs had the copyright to these games due to the principle of work for hire, they relied on the creativity involved of the person recording the video.[i] However, in a later decision, they looked at the Baltimore case and disagreed with it, holding that a sports event is neither scripted nor authored and if sports events were designed to be copyrighted, they would have been drafted into the statute.[ii]
Since an entire sports game cannot be copyrighted, it is fascinating to investigate whether single sports moves can be. The world of sports is known for the popularity of numerous signature moves by various athletes that have highlighted their remarkable skills in helping them win their games, such as M.S. Dhoni’s Helicopter Shot, the Cryuff turn, and the Rafael Nadal forehand. These characteristic techniques were developed by these athletes through years of practice and expertise, and they should be able to claim ownership of their efforts. The Copyright Act does not explicitly mention sports; nonetheless, Section 2(q) of the Act mentions “performance,” which is defined as any type of live visual or acoustic presentation by performers. This means any signature move could fall under “performance” since it is a live visual performance as part of a sports game. Further, Section 2(qq) states that a “performer includes an actor, singer, musician, dancer,…a person delivering a lecture or any other person who makes a performance.” While this section does not mention “sportsperson”, it can be covered under the scope of “any other person who makes a performance,” by the principle of Ejusdem Generis, which suggests that the definition is not exhaustive.
Pre-requisites for Copyright
After establishing that a sportsperson is eligible for copyright under the Act, there are two prerequisites for copyright, namely originality (includes creativity) and fixation. The United States followed the ‘sweat of the brow’ doctrine till that was negated in Feist Publication Inc v Rural Telephone Services, and replaced by the ‘modicum of creativity.’[iii] By doing this, the new standard for originality became anything where there is a minimal amount of intellectual creativity. The test for originality in India is based on Eastern Book Co. v Modak which adopted the ‘skill and judgement’ test from Canada, which requires the use of a person’s knowledge along with the capability to form an opinion, the basic principle being an intellectual effort by the person.[iv] Following my application of all the tests on originality explained, these sportspersons have acquired skill by practicing the sport for years; and on acquiring so, they have used a degree of creativity to formulate a move out of all their knowledge. The athletes have played countless games allowing them to have a good sense of judgement concerning their moves. Based on these facts, it is apparent that these techniques have originality owing to some creativity as per the US standard, and skill and judgement as per the Indian standard. The second pre-requisite, fixation requires this move to be in a fixed form to ensure permanency. Although a signature move cannot naturally be fixed but if it is captured in any video, such a video would suffice as fixation. This means both the prerequisites for copyright are fulfilled.
Rights under the Copyright Act
Article 2 of the World Intellectual Property Organization Copyright Treaty states that a copyright only protects expressions and not ideas and procedures. In my opinion, in the case of a sports move, the move in itself is an idea that has originated with some creativity, however, when it comes to copyright, it is the expression of the move that will be copyrighted and not the idea.[v] Hence, the way the sportsperson has expressed the move (specific to them) is the work that will be copyrighted wherein the idea can be used by other people as well. It has been proved that sports moves have all the prerequisites for copyright, and since sports come under performance, Section 38 of the Copyright Act explains that any performer who is engaged in a performance has a special right called the “performer’s right” concerning the respective performance. Additionally, Section 38B explains the moral rights of the performer as having the right to be identified as the performer in the performance and to claim damages if there is any harm to the performance. Clearly, the Indian Copyright Act provides for provisions to protect the performance which can be interpreted to be a sports move as well.
Feasibility
As explained above based on my interpretation of the Copyright Act, it is legally possible to copyright a sports move, however the same might not be feasible. Sports is an area where there is a list of rules to be followed and the sportspersons try to find new moves within these rules to make them stand out and once they have created such a move, other players either try to learn or defend it. The nature of sports is such that there cannot be any restriction on using a signature move by another player, the goal is to learn and play at your best with a high level of teamwork. With this reality it would not be feasible to put a restriction on the usage of a signature move, instead, the sportspersons can still maintain their moral rights under Section 38B while permitting open use of the move to promote growth in sports. Despite the lack of feasibility to enforce the exclusive right given under Section 38A of the Copyright Act, Section 38B could make up for that as the sportsperson would be able to avail their moral right which provides them with credit for their creativity and hard work put into the signature sports move in question, as well as protection against derogation of their work/performance. Since the aim of the Copyright Act is to incentivize creativity, the act of providing the sportsperson can only be considered a move towards the same.
Conclusion
While inspecting the Statutes, various signature moves, and cases, it is clear that there is scope to copyright a signature sport move but the same has not been done due to the low feasibility. Hence, looking at the sports market, it can be expected that there could be a time where a sportsperson might argue for such a copyright but the same should be limited to moral rights to promote sportsmanship and advancement in all areas of sports.
[i] Baltimore Orioles v Major League Baseball Players [1986] 805 F 2d 663.
[ii] National Basketball Association v Motorola Inc [1996] 105 F 3d 841.
[iii] Feist Publication Inc v Rural Telephone Services [1991] 499 US 340.
[iv] Eastern Book Co. v Modak [2008] 1 SCC 1.
[v] Baker v Selden [1879] 101 US 99.