About Author: Keshab Roy Choudhury is a fourth year student at Jindal Global Law School, Sonipat. He is interested in IP and competition law.
The WIPO has recognized the importance of leveraging the power of IP[i] to protect the commercial interests of the various participants in the sports economy. Securing patents for sporting goods manufacturers, exclusive broadcasting rights for broadcasters and trademarks for players and clubs to promote their branding interests[ii] are some of the uses of IP in sport. Sports events are not mere displays of athleticism. The SC[iii] and various High Courts[iv] have upheld that sports events fall within the realm of entertainment as they provide the participants and spectators with amusement and gratification.
Yet, it is the athlete’s finesse and movements themselves which drive the commercialization of sports. Commercialization would be impossible if spectators did not appreciate an athlete’s craft. While many consider sports movements to be ‘artistic’,[v] it raises an interesting question as to how much intellectual property protection can be granted to sports movements. This question has not been considered adequately within the Indian IP discourse.
This piece aims to assess the viability of granting copyright protection to sports movement within the Indian regime. Even though there does not exist any legal definition of what a sports move entails, some scholars have been able to characterize sports moves. Accordingly, this piece primarily focuses on what Mezei calls ‘atomic moves’[vi] i.e. singular bodily movements made by an athlete in the course of a sport, such as the ‘knuckleball kick’ and movements made in routine oriented competitive sports (‘ROCS’) i.e. sequences performed in sports such as gymnastics, figure skating and artistic swimming which involve an element of pre preparation.[vii] The author argues that while it may be possible to grant copyright protection to certain forms of athletic movement, this ought not to be done to protect the competitive sporting status quo.
II. Justifications for protecting sports movement:
There are primarily four justifications for expanding copyright protection onto the sports field. First, in a digitized world where athletes performances are easily accessible and movements reverse engineered, a competitive advantage[viii] is created by offering IP protection. Offering IPR protection for sports movements would incentivise athletes to develop more unique moves,[ix] even if they do not perform at a highly competitive level. This echoes the utilitarian justification[x] for IP protection. Second, athletes would want to protect their interests by controlling the dissemination of their recorded athletic performances[xi] through different media and gain some profit from their use and display. Third, IP protection would enable the creators of unique moves to be duly recognized for the effort[xii] they invest in making the same. This embodies the Lockean justification[xiii] for protection. In light of these justifications, the suitability of copyright protection is examined.
III. Sports movement and copyright:
The Copyright Act 1957 (‘the Act’) provides six strict categories of works as per S.13(1) in which copyright subsists: literary, dramatic, musical, artistic, cinematograph films and sound recordings. As a rule,[xiv] no copyright subsists in schemes, ideas, methods or systems. Only the original, creative expressions of the same are protected. Atomic moves such as unique twirls, throws or dribbles, irrespective of how beautifully or technically they are performed, cannot be subject to copyright protection similar to dance steps like the waltz as they are purely functional movements and are not intended to be covered by copyright.[xv] In Institute for Inner Studies v Charlotte Anderson[xvi] (‘Charlotte’), the HC ruled that a singular yoga asana could not be copyrightable as such functions were in the public domain since time immemorial. The enquiry now shifts to sequences in ROCS. To claim copyright protection, it must be shown that a work is 1) original; 2) falls within the subject matter of the Act and; 3) capable of being fixed in a tangible medium.
For a work to be original, it must be created independently and must exhibit a minimal degree of creativity,[xvii] a fairly low standard. Sequences in ROCS easily fulfil this criteria as one’s routine is choreographed[xviii] to utilize a number of atomic moves, such as flips or turns in succession. The creativity and originality of the routine emanates from the unique timing and combination[xix] of the moves. The sequences are often performed with background music and specific costumes to add a melodic and artistic flavour[xx] or, as in figure skating, to depict dramatic elements.[xxi]
Can this constitute a ‘choreography’ under S.2(h) of the Act? Nowhere has choreography been defined in the Act and neither have any guidelines been issued by the Copyright Office to date. In Academy of General Education v Malini Mallya,[xxii] the SC clarified that a new form of ballet that was developed would classify as a dramatic work under the Act. However, the Court did not clarify the minimum threshold which had to be crossed to prove a work was choreographic in nature.
However, what cannot constitute choreography may be derived from Charlotte. The HC had to examine, inter alia, whether a sequence of yoga poses developed by the plaintiffs was choreography within the meaning of S.2(h) of the Act. The Court applied a two-step test: 1) the work had to be capable of physical performance or accompanied by action; and 2) it had to be capable of fixation in the form of writing, ‘or otherwise’,[xxiii] which indicated predictability of the work. The Court held that sports games and by extension, yoga routines lacked the predictability element and thus, could not be dramatic works. This is an incorrect application of the Court’s own test, as the unpredictability of a game like cricket cannot be equated to the carefully curated exercise sequence which would always produce the same result if the instructions are carried out correctly. Notwithstanding this, it appears the HC decided on another ground. It noted that the California District Court’s summary judgement in Bikram’s Yoga v Evolation Yoga[xxiv] (‘Bikram’) held that a mere simplistic compilation of physical movements did not rise to the level of choreographic authorship. There had to be “something significantly more.”[xxv] The facts of that case were similar to Charlotte and the HC affirmed Bikram’s ratio. The Ninth Circuit also upheld[xxvi] the California court’s summary decision. Yet, none of these cases answered what that “something significantly more” had to be. Even post Bikram, there is scant case law in the US[xxvii] regarding what positively constitutes a choreography.
One commentator has suggested[xxviii] the rule of noscitur a sociis could be applied to hold that choreography must involve dramatic content or storytelling. However, this sets the bar extremely high as many dance works in genres like hip hop or Bollywood simply do not have possess these elements, despite being “choreographed”. The US[xxix] and Canada[xxx] have also moved away from having the requirement for a dramatic element to protect choreography. Buccafusco suggests[xxxi] that the Court can evaluate if the sequence in question, after fulfilling the originality and fixation requirements, elicits ‘mental effects’ i.e. emotions for the onlooker, in the same way as a painting, or if it is performed solely for functional purposes, like better physical health. In case it is the latter, protection should be denied. This is a fact specific, albeit imperfect enquiry, yet it is broad enough to encompass a wide variety of choreographies and exclude exercise regimens or a mere sequence of atomic moves. This is a standard that Indian courts could adopt.
Applying the tests in Charlotte to ROCS such as artistic swimming, gymnastics and figure skating, the sequences performed are capable of physical performance and are capable of being fixed, in the form of video recordings or physical descriptions. Further, there is an element of predictability as the athletes perform the same routine in the competitions that they spend months preparing for. However, the court in Charlotte misunderstood the fixation requirement that is needed for dramatic works as S.2(h) read with S.2(f) of the Act specifically excludes video recordings as a method of fixation. Thus, fixation of choreography can only be done through a physical description of the same,[xxxii] a rather absurd result.
Further, the sequences in ROCS are not mere compilations of physical movements. The rules of many ROCS, including gymnastics,[xxxiii] figure skating[xxxiv] and artistic swimming,[xxxv] involve assessing contestants on not only how they perform the technical skills, but also how good the choreography is, in addition to their artistic interpretations of the music as well as expressions. Even applying Buccafusco’s test, these movements are meant to elicit strong emotional feelings amongst the spectators and are not mere exercises. Thus, an expansive reading of choreography in S.2(h) of the Act would allow an athlete to copyright a sequence that they perform in an ROCS. Interestingly however, the US Copyright Office does not consider ‘feats of physical skill or dexterity’ to be copyrightable[xxxvi] and the Indian courts are often influenced by American practices. It would be interesting to see how the Indian courts deal with the subject, should it ever be litigated.
IV. A need to keep ROCS out of IP protection?
Even though sequences in ROCS may be subject to copyright protection as choreographic works, there is a need to exclude such sequences by legislative intervention. Indian courts often subscribe to the Lockean and utilitarian justifications for copyright protection.[xxxvii] However, it must be noted that both of the justifications fail within the context of sports. As far as the Lockean justification is concerned, sports has an established body of norms[xxxviii] whereby creative athletes are revered by spectators, journalists, coaches and other fellow athletes who acknowledge effort and many a times, name ‘signature moves’ or sequences after them.[xxxix] Athletes in ROCS understand that it would be professional hara- kiri to copy sequences, not because they fear infringement litigation, but because their reputation as worthy competitors would be reduced in the eyes of their fans and fellow athletes.[xl] This incentivises them[xli] to develop something new for every competition. Accordingly, the utilitarian justification also fails. Further, despite ROCS existing for several years, every competition sees new, creative routines being executed by the athletes who often participated in previous years editions of the same competitions. No athlete or coach till date has complained that they were unable to innovate new routines because of a lack of copyright protection, or that they feared their competitors copying their routines.
Rosenblatt argues that sports movements operate in IP’s ‘negative space’,[xlii] where innovation and creativity thrive in the absence/reduced enforcement of IPR. While some sports moves can be to be protected by IPR, athletes do not protect their moves or sequences to honour sporting integrity.[xliii] The widespread availability of moves and sequences is good for the sports as distinct movements which are copied by others bring it notoriety and keeps fans engaged, who would otherwise lose interest if such movements were monopolized.[xliv] In sports, the rewards for the creation of new sequences or moves is not greater economic benefit, but overwhelmingly for recognition and respect.[xlv] In India, the best way to encourage creativity and participation in sport is by supporting athletes financially and by providing them excellent training,[xlvi] not through IPR protection which risks meddling with the competitive status quo.
This piece examines the feasibility of granting copyright protection to sports moves within the Indian paradigm. It is possible for copyright protection to be granted to sequences performed in ROCS. However, given that creation flourishes in the absence of IP protection within the sporting context and the practical difficulties of affording copyright to sequences, it is suggested that the Legislature should issue some guiding principles regarding choreography and expressly exclude sequences performed in ROCS choreography to prevent frivolous litigation and maintain the competitive balance in sports.
[i] WIPO, ‘IP and Sports- Background Brief’ (WIPO) https://www.wipo.int/pressroom/en/briefs/ip_sports.html accessed 17 January 2022.
[iii] Bangalore Turf Club v Regional Director  9 SCC 657.
[iv] Geeta Enterprises v State of UP  4 SCC 202; DLF Golf Resorts Ltd v State of Haryana  AIR P&H 40; New Delhi Television Limited v ICC Development (Intl.) Limited  SCCOnLine 5336, . In New Delhi Television Limited, the Delhi HC poignantly observed the following: “The essence of sports lies in the joy of watching two combatants trying to outwit each other with skilful interplay at a level playing field and not a field designed in favour of one – the batsman; to grind the ball to dust and the helpless bowler chucking the ball in supreme indignity. But millions sit in front of the idiot box, not perhaps to see cricket, but to have fun. We are confident that if the boisterous crowd, jumping and shouting in thrill; hogging hamburgers, pizzas, popcorn, potato chips etc. and gulping gallons of coca-cola, pepsi cola, beer etc. if quizzed about the nuances of cricket i.e. where does the forward short-leg position himself on the field or where is the long-off boundary or where is the square-leg, would scratch his/her head in wonder. If quizzed whether the stroke played is a drive, a hook, a cover-drive, a glance, a cut, a sweep etc. would likewise scratch his/her head in wonder. And probably respond : Hey man, Chill! Be off! We’re having fun. And the new breed of investors, making huge investments, convinced that they have created a new breed of cricket, with innovation, that enthrals all. These investors beseech this Court to protect their interest.”
[v] Dimitris Platchias, ‘Sport is an Art’ (2003) 3(4) European Journal of Sports Science, 1 https://www.tandfonline.com/doi/abs/10.1080/17461390300073403 accessed 17 January 2022.
[vi] Péter Mezei, ‘Copyright protection of sports moves’ in Enrico Bonadio & Nicola Lucchi (eds), Non-Conventional Copyright: Do New and Atypical Works Deserve Protection? (Elgar Publishing 2018) 271, 277 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2925195> accessed 17 January 2022.
[vii] WM Tucker Griffith, ‘Beyond the Perfect Score: Protecting Routine Oriented Athletic Performance with Copyright Law’ (1998) 30 Connecticut Law Review 675, 714 https://heinonline.org/HOL/LandingPage?handle=hein.journals/conlr30&div=26&id=&page= accessed 17 January 2022.
[viii] Giuliana R Garcia, ‘He Shoots, He Scores…. And Receives Copyright Protection? How the Current State of Intellectual Property Law Fumbles With Sports’ (2011) 11 University of Denver Sports and Entertainment Law Journal 81, 84 https://heinonline.org/HOL/LandingPage?handle=hein.journals/denversel11&div=5&id=&page= accessed 17 January 2022.
[ix] Loren J Weber, ‘Something in the Way She Moves: The Case for Applying Copyright Protection to Sports Moves’ (1999) 23 Columbia-VLA Journal of Law & The Arts 317, 321 https://heinonline.org/HOL/LandingPage?handle=hein.journals/cjla23&div=20&id=&page= accessed 17 January 2022.
[x] The utilitarian justification for IP protection holds that authors and innovators of intellectual works ought to be given limited rights of ownership which enables them to exploit their works in ways they deem fit. In the absence of such guarantees, creators and authors would not be able to recover their investment costs into creating the work, and would simply not produce intellectual property, thereby reducing overall social utility. See Ken Himma and Adam Moore, ‘Intellectual Property’ (Stanford Encyclopaedia of Philosophy, 10 October 2018) https://plato.stanford.edu/entries/intellectual-property/ accessed 17 January 2022.
[xi] Weber (n 9) 326.
[xii] Garcia (n 8).
[xiii] The Lockean theory propounds that one who invests their labour into common resources to create something ought to be entitled to fruits of their efforts. Rights are created when labour is mixed with some common resource, like ideas, or an unknown object. See Ken Himma and Adam Moore, ‘Intellectual Property’ (Stanford Encyclopaedia of Philosophy, 10 October 2018) https://plato.stanford.edu/entries/intellectual-property/ accessed 17 January 2022.
[xiv] Harman Pictures NV v Osborne  2 All ER 324; RG Anand v Delux Films  4 SCC 118.
[xv] US Copyright Office, ‘Copyright Registration of Choreography and Pantomime’ https://www.copyright.gov/circs/circ52.pdf accessed 17 January 2022. “Individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet. Functional physical movements—in and of themselves—are not eligible for registration as choreography because these movements do not represent the type of authorship that Congress intended to protect as choreography.”
[xvi]  SCCOnline Del 136, .
[xvii] EBC v DB Modak  1 SCC 1.
[xviii] Tucker Griffith (n 7) 714.
[xx] Olympics, ‘Spain’s Artistic Swimming Free Routine to “El Oceano” at London 2012 | Music Monday’ (Youtube, 30 September 2019) accessed 17 January 2022.
[xxi] Olympics, ‘Yulia Lipnitskaya’s Phenomenal Free Program – Team Figure Skating | Sochi 2014 Winter Olympics’ (Youtube, 27 February 2014) https://www.youtube.com/watch?v=ke0iusvydl8&t=231s accessed 17 January 2022.
[xxii]  4 SCC 256.
[xxiii]  SCCOnline Del 136, . The Court observed the following: “The summary of the observations made by the learned author relating to scope of the protection of dramatic work is that for a work to be called as a dramatic work has to be the one which is capable of physically performed or accompanied by action. The other requirement for a work to be called as dramatic work is fixation of the matter in the form of writing or otherwise which means certainty of incidents as a predetermined plan. Where there exists a reasonable doubt as to complete certainty of the performance of the work in the manner conceived by the author or writer, in such cases, the work falls short of the requirement of fixation or certainty of the performance and therefore cannot be called as dramatic work.”
[xxiv]  U.S. Dist. LEXIS 177671. The Court observed the following: “A mere compilation of physical movements does not rise to the level of choreographic authorship unless it contains sufficient attributes of a work of choreography. And although a choreographic work, such as a ballet or abstract modern dance, may incorporate simple routines, social dances, or even exercise routines as elements of the overall work, the mere selection and arrangement of physical movements does not in itself support a claim of choreographic authorship. Thus, preferable forms of pantomimes or choreographic works—ones that satisfied the fixation requirement for copyrights—are ones recorded in either the Laban system of notation or as a motion picture of the dance. Choudhury’s copyrighted works are not either of those. Further, the Sequence of 26 yoga poses hardly seems to fall within the definition of a pantomime or a choreographic work because of the simplicity of the Sequence and the fact that it is not a dramatic performance.”
[xxvi] Bikram’s Yoga College v Evolation Yoga Case No. 13-55763, (9th Cir., Oct. 8, 2015).
[xxvii] Kara Krakower, ‘Finding the Barre: Fitting the Untried Territory of Choreography Claims into Existing Copyright Law’ (2018) 28 Fordham Intellectual Property Media & Entertainment Law Journal 671 ,704 https://ir.lawnet.fordham.edu/iplj/vol28/iss3/5/ accessed 17 January 2022.
[xxviii] Utkarsh Srivastava, ‘So you think you can (copyright) dance? An analysis of the copyrightability of choreographic works in India’ (2017) 12(1) Journal of Intellectual Property Law and Practice 43, 46 https://academic.oup.com/jiplp/article-abstract/12/1/43/2605874 accessed 17 January 2022.
[xxix] US Copyright Office, ‘Copyright Registration of Choreography and Pantomime’ https://www.copyright.gov/circs/circ52.pdf accessed 17 January 2022. “For choreography and pantomimes created or first published after January 1, 1978, a choreographic work may present a story, or it may be an abstract composition.”
[xxx] Copyright Act RSC 1985, s (2) (Canada). “Choreographic work includes any work of choreography, whether or not it has any story line.”
[xxxi] Christopher Buccafusco, ‘Authorship and the Boundaries of Copyright: Ideas, Expressions, and Functions in Yoga, Choreography, and Other Works ‘ (2016) 39(3) Columbia Journal of Law & Arts 421, 430 https://journals.library.columbia.edu/index.php/lawandarts/article/view/2081 accessed 17 January 2022.
[xxxii] Spadika Jayaraj, ‘The Kuchipudi Copyright Conundrum: Part I’ (SpicyIP, 31 July 2015) https://spicyip.com/2015/07/the-kuchipudi-copyright-conundrum-part-i.html accessed 17 January 2022. See also, Bipasha Saikia, ‘In The Blink Of An Eye : Navigating The Murky Waters Of Originality And Fixation Of ‘Ephemeral Works’’ (2021) 4.1 Journal of Intellectual Property Studies 17, 33 https://journalofipstudies.files.wordpress.com/2021/01/first.pdf accessed 17 January 2022.
[xxxiii] Fédération Internationale De Gymnastique, ‘2022 – 2024 CODE OF POINTS Acrobatic Gymnastics’ 27
https://www.gymnastics.sport/publicdir/rules/files/en_ACRO%20CoP%202022-2024.pdf accessed 17 January 2022; Fédération Internationale De Gymnastique, ‘2022 – 2024 CODE OF POINTS Rhythmic Gymnastics’ 103 https://www.gymnastics.sport/publicdir/rules/files/en_RG%20CoP%202022-2024.pdf accessed 17 January 2022.
[xxxiv] International Skating Union, ‘Special Regulations & Technical Rules Single & Pair Skating And Ice Dance 2021’ 167 https://www.isu.org/figure-skating/rules/fsk-regulations-rules/file accessed 17 January 2022.
[xxxv] FINA, ‘Fina Artistic Swimming Rules 2017 – 2021’ 14
[xxxvi] US Copyright Office, ‘Copyright Registration of Choreography and Pantomime’ https://www.copyright.gov/circs/circ52.pdf accessed 17 January 2022. “Functional physical movements, feats of physical skill or dexterity, and ordinary motor activities—in and of themselves—are not eligible for registration as choreography because these movements do not represent the type of authorship that Congress intended to protect as choreography.”
[xxxvii] Sulamangalam Jayalakshmi v Meta Musicals  PTC 681, 694. The Court observed that copyright law is to protect the fruits of a man’s work, labour and skill from annexation by other people; Holy Faith International v Dr Shiv Kumar  (33) PTC 456 (AP). The Court observed that “the primary function of a copyright law is to protect the fruits of a man’s work, labour, skill or test from being taken away by other people.”; JB Khanna v S Asad  SCCOnLine Mad 254. The Court noted that the aim of copyright law was to secure a fair return for the author’s intellectual labour and prevent unauthorized use of the same; EBC v DB Modak  1 SCC 1. The court observed that “the object of the Act is to protect the author of the copyright work from an unlawful reproduction or exploitation of his work by others. Copyright is a right to stop others from exploiting the work without the consent or assent of the owner of the copyright. A copyright law presents a balance between the interests and rights of the author and that of the public in protecting the public domain, or to claim the copyright and protect it under the copyright statute.”
[xxxviii] Mezei (n 6) 297.
[xxxix] Alice Park, ‘These Are All the Gymnastics Moves Named After Simone Biles’ Time (26 July 2021) https://time.com/6083539/gymnastics-moves-named-after-simone-biles/ accessed 17 January 2022; Kelly Cohen, ‘Athletes’ signature moves that changed the game’ ESPN (17 September 2019) https://www.espn.in/nba/story/_/id/27637296/athletes-signature-moves-changed-game accessed 17 January 2022.
[xl] Mezei (n 6) 296.
[xlii] Elizabeth L Rosenblatt, ‘A Theory of IP’s Negative Space’ (2011) 34(3) Columbia Journal of Law and the Arts 318, 322 https://journals.library.columbia.edu/index.php/lawandarts/article/view/2215 accessed 17 January 2022.
[xliii] Ibid 333.
[xlv] Ibid 343.
[xlvi] Sanjay Shrivastava, ‘India puts the burden of carrying national pride on its poorest – but doesn’t care for their welfare’ Scroll.in (14 August 2021) https://scroll.in/article/1002750/india-puts-the-burden-of-carrying-national-pride-on-its-poorest-but-doesnt-care-for-their-welfare accessed 17 January 2022.
Image source: here