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Lawyers hope they’ve found a winning move By DANIEL OSTROVSKY On Dec. 4, Pittsburgh Steelers wide receiver Hines Ward caught a 20-yard touchdown pass to tie the score in an important game with its division rival, the Cincinnati Bengals.
Ward marked the touchdown by doing the “Ickey Shuffle”— a celebration dance first performed in the late 1980s by then-Bengals running back Elbert “Ickey” Woods. Celebrations by players such as Ward, the Philadelphia Eagles’ Terrell Owens and Baltimore Ravens’ own Ray Lewis have caused one lawyer to ponder: Could sports celebration moves be copyrighted? And the answer for Henry M. ‘Hank’ Abromson, of Ober, Kaler, Grimes & Shriver, was a resounding yes. Last month, Abromson applied for federal copyright protection of the “PS:I-1,” a four-step celebration performed by his friend and Ober|Kaler colleague Peter F. Stine — a long distance runner. “The fans can connect to these athletes through the personality and charisma that’s displayed through the moves,” Abromson said during a telephone interview yesterday. “It’s important that these athletes go ahead and protect these moves and protect the value.” James B. Astrachan, of Astrachan Gunst Thomas, said that it is indeed possible for a celebration dance to meet the standards for copyright protection. “You can copyright choreography; you would have to record it,” Astrachan said. “I suspect even if it was recorded in film with your knowledge it would be copyrighted.” A copyright exists independently of whether it is registered with the copyright office, Astrachan added, although such registration is needed to claim certain damages in litigation. “More bizarre things have been copyrighted,” he concluded. However, University of Maryland law professor Robert Suggs cautioned that “choreography is copyrightable; social dance steps are not.” Because there is little precedent in the area of celebration dace copyrights, Suggs said it is unclear which category “PS: I-1” falls into. Also, Suggs noted, most sports celebrations are not fixed in a particular medium. “It would be a difficult argument to say that Fox or whatever network is broadcasting the game is fixing it under the author’s authority,” he stated. New York-based copyright law expert William F. Patry, of Thelen Reid & Priest, questioned whether a celebration dance meets the originality criterion for copyright protection. “I’d be skeptical that shaking your butt and jumping up and down in an end zone is really going to do it,” he said. “Small musical themes aren’t protected,” he added. “It could be that this would fall into that category.” Whiteford, Taylor & Preston lawyer Steven E. Tiller agreed. “A copyright protects the embodiment of an idea, and I am not sure that a particular end zone move or a dance move would really be something that would fall within the scope of a copyright,” he said. Subject to proof According to Abromson, it takes approximately four months for the U.S. Copyright Office to approve an application. On his Web site, he describes the main criteria a celebration dance will likely have to meet. In addition to being original, the celebration move must be “fixed in a tangible medium of expression,” and “included in one of the several types of works that Congress approved for copyright protection.” Furthermore, the celebration move will have to pass the “idea/expression test,” meaning it must be “complex enough to not stifle the creation of future works,” the Web site states. Even if Abromson and Stine, or any other lawyer, succeeds in copyrighting an on-field celebration, what advantage would they gain? If someone were to copy a celebration, Abromson said, “the athlete who originally had the move would try to enjoin the other athlete from performing the move again” or could ask for money to “license it out.” “The area of celebrity and athlete-branding is really taking off and this is just one more asset an athlete can have,” Abromson said. Astrachan, on the other hand, said an athlete holding a celebration dance copyright would have a hard time winning a case in court. (This is certainly unfortunate news for “Ickey,” who in 1997 told Sports Illustrated he was supporting his family by selling chicken, beef and seafood.) It would be hard to prove that someone else made money by performing the dance or that one lost out on financial compensation because of infringement, he explained. And to win statutory damages after a registered copyright is violated, the violation must be willful, he said — another aspect of an infringement that would be hard to prove. “Then there is a bit of a practical problem which is a copyright only protects something from being copied, thus the name,” said Tiller. “And if somebody independently created their own end zone dance or dance move, or if they [substantially] changed it, then it’s not actionable.” |
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