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Sports Celebration Move Basics
What is a sports celebration move?
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A sports celebration move is a dance, gyration, or other movement performed by an athlete in celebration of a successfully executed play by the athlete or his team. The move is typically performed by an athlete to express his emotion after a successful play, to entertain fans, or to excite the spectators.
Two types of sports celebration moves exist. The first type is a hallmark move. This type of move is regularly performed by an athlete and becomes his “trademark” move. The athlete becomes identified by one move. An example of this would be Ickey Wood’s Ickey Shuffle or Ray Lewis’ dance. The second type of move is a serial move. A serial move is one of many moves created and performed by an athlete. The athlete is identified as one who performs many, creative moves and each move carries great value as an identifier in the series. An example of a serial move is any one of Chad Johnson’s celebrations.
Why should an athlete copyright his sports celebration move?
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Simply, because sports celebration moves are highly valued commodities.
Protection of an athlete’s sports celebration move is necessary because a sports celebration serves as an identifier of a particular player’s charisma, personality, excitement for the game, and his success on the field. It can thereby add significantly to an athlete’s market power and brand awareness. For these reasons, it is crucial that each athlete has a way to prohibit other competitors from exploiting, claiming rights to, or diluting the novelty of his sports celebration move(s).
Why protect the move with copyright?
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Copyright law, almost certainly, offers the most effective protection for an athlete’s celebratory move. The profit motive of creating a unique and attention-grabbing move is perfectly in line with the purpose of copyright. Additionally, these choreographed moves can be accurately described as “choreographic works”, which is one type of copyrightable subject matter.
While the true purpose of copyright, as the Constitution’s Framers intended it, is not clear from the language in the Copyright Clause, Eldred v. Ashcroft makes it clear that the purpose of copyright is to use a profit motive to encourage authors to create works that will advance the public welfare.
In that case, the Court noted:
“[T]he economic philosophy behind the [Copyright] Clause … is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.”… Accordingly, “copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge…. The profit motive is the engine that ensures the progress of science.”
Additionally, sports celebration moves fit neatly into one type of copyrightable subject matter, choreographic works.
Moreover, the current version of the Copyright Act offers copyright owners five exclusive rights, including “the traditional rights of reproduction and distribution [as well as the] broadened rights of public performance[, public] display[,] and a newly defined right to create derivative works based on the copyrighted work.” These rights serve to protect an athlete’s copyrighted move, while he performs it on the field and in public.
Copyright Basics
What is required of a work for it to be copyrightable?
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The Act immediately “grants a limited statutory monopoly in original works of authorship [the moment they are] fixed in a tangible medium of expression.” Thus:
(1) the work must be an “original work of authorship;”
(2) the “original work of authorship” must be fixed in a “tangible medium of expression”;
(3) the Act’s final requirement directs that in addition to (1) and (2), the work must fall within the subject matter of copyright.
What is an “original work of authorship”
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In Feist Publications v. Rural Telephone Service Co., the Supreme Court set forth the required elements of an “original” work. The Court stated, “[o]riginal, as the term is used in copyright, means only that: [(1)] the work [is] independently created by the author[;]… and [(2)] that it possesses at least some minimal degree of creativity.”
An “original” work must be independently created, not merely copied from another’s work. However, an “original” work is not required to be novel. Even if a work is identical to another’s work, provided that it is a product of its author’s independent efforts, it will nevertheless satisfy this prerequisite. In the words of Judge Learned Hand, “[i]f by some magic a man who had never known [Keats’ Ode on a Grecian Urn] were to compose anew Keats’ Ode on a Grecian Urn, he would [nevertheless] be an “author.”
Assuming that the work satisfies the first prong of the “originality” requirement, it must still exhibit “some minimal degree of creativity.” In Alfred Bell & Co. v. Catalda Fine Arts, the Second Circuit states that,
All that is needed to satisfy both the Constitution and the statute is that the “author” contribute[s] something more than a “merely trivial” variation, something recognizably “his own.” Originality in this context “means little more than a prohibition of actual copying.” No matter how poor artistically the ‘author’s’ addition, it is enough if it be his own.
With this statement, the court in Alfred Bell makes it clear that “the modern definition of ‘originality’ requires more than mere independent creation, but not much more.”
If it is determined that the work is sufficiently “original,” the work must then satisfy the requirement of fixation.
What does it mean to be “fixed in a tangible medium of expression”
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A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
Because the Copyright Act of 1976 offers protection to both published and unpublished works the moment the work meets the “fixation” standard the work itself is considered to exist for purposes of federal copyright law. For example, for purposes of federal copyright protection, a musical composition exists from the instant that the author causes the musical notation to be written on paper.
Congress revised the 1909 Act’s definition of “fixed” in anticipation of new technological developments:
[The] broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from such cases as White-Smith … under which statutory copyrightability has been made to depend upon the form or medium in which the work is fixed. Under the bill it makes no difference what the form, manner, or medium of fixation may be—whether it is in words, numbers,…pictures, …whether embodied in a physical object in written, printed, … magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device “now known or later developed.”
According to MAI Systems Corp. v. Peak Computer, Inc., even a medium as temporary as Random Access Memory (RAM) - in RAM, the stored information is lost when the computer is turned off, unlike the permanently stored information in ROM, - qualifies as a sufficient medium for the purposes of fixation. The court in that case commented, “the copy made in RAM is ‘fixed’ …[because] it can be ‘perceived, reproduced, or otherwise communicated.’”
What is copyrightable subject matter
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If the work is both sufficiently “original” and “fixed,” for purposes of copyright protection, the work must then survive the third and last hurdle; namely, it must fall within the subject matter of copyright.
The Copyright Act delineates the types of works, in eight broad categories, which are eligible for copyright protection in section 102 (a):
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
While these categories detail the types of works that expressly fall within the scope of copyrightable subject matter, ‘“these categories are [meant to be] illustrative[,] not limitative, and … do not necessarily exhaust the scope of ‘original works of authorship’ that the bill is intended to protect.’”
Congress intended to leave the phrase “works of authorship” undefined. Congress did not further define the phrase because it intended a “flexible definition … that would neither ‘freeze the scope of copyrightable subject matter at the present stage of communications technology or … allow unlimited expansion into areas completely outside the present congressional intent.’”
Why might sports celebration moves not be copyrightable?
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There are two reasons why sports celebrations moves may not be copyrightable. The first is due to the Idea/Expression Dichotomy. The second is due to the policy regarding a move's functionality.
The Idea/Expression Dichotomy
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The idea/expression dichotomy is perhaps, “the most fundamental axiom of copyright law.” The language giving rise to this copyright conundrum is found in section 102 (b) where it states, “[i]n no case does copyright protection for an original work of authorship extend to any idea, … regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
The purpose behind “copyright's idea/expression dichotomy is to strike ‘a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts [and ideas] while still protecting an author's expression.’” Ideas and facts are the “basic building blocks of copyrightable expression.” Copyright encourages authors to combine these basic forms, like words or musical notes, in a sufficiently creative way to construct an “original work of authorship.” Therefore, to grant a monopoly in the building blocks of copyrightable expression would be to stifle future creativity and, hence, be counterproductive.
While one cannot receive copyright protection in an idea or a fact, an original and creative expression of that idea or fact is certainly eligible for copyright protection. However, attempting to separate the idea from an expression of that idea is much more difficult than it seems. “The distinction between nonprotectible ‘ideas’ and their protectible ‘expression’ is one of the most pervasive, as well as one of the most elusive, threads in copyright law.”
Baker v. Selden reveals the complexity of this dichotomy. In that case, Selden authored a book explaining a unique system of bookkeeping. Baker authored subsequent books, which discussed an almost identical system. However, Baker expressed the system in a new, creative, and original way. The Court found that Baker did not infringe on Selden’s copyright because,
[Baker] use[d] a similar plan so far as the results are concerned; but [he] ma[de] a different arrangement of the columns, and use[d] different headings. Where the truths of science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in his own way.
Although Baker used Selden’s ideas, he expressed those ideas in a new and creative way. Here, Baker used Selden’s ideas as building blocks to create a new, copyrightable expression. This case serves as a prime example of how the idea/expression dichotomy furthers copyright’s goal, “to promote the progress of science and the useful arts.”
An example of this concept in this context might involve an athlete attempting to copyright a simple move like a high-five. Because the high-five is so basic, it would probably be seen as a building block of a more involved, complex move, therefore it would most likely not be copyrightable.
Useful Articles: Functional v. Non-Functional
Separating protectible form from unprotectible function presents a second hurdle to an athlete wanting to copyright his or her sports celebration move.
The solely “utilitarian aspects of ‘useful articles’ are not subject to copyright protection.” Additionally, “if an article has any intrinsic utilitarian function, it can be denied copyright protection except to the extent that its artistic features can be identified separately and are capable of existing independently as a work of art.”
The Supreme Court addressed the issue of separating protectible form from unprotectible function in Mazer v. Stein. In that case, the Court found that, “[a] subsequent utilization of a work of art in an article of manufacture in no way affects the right of the copyright owner to be protected against infringement of the work of art itself.” However, even after Mazer, the line between form and function is still quite blurry.
In an effort to simplify the issue, Congress released a House Report in 1976. In the report, Congress “added language to the definition of ‘pictorial, graphic, and sculptural works’ to clarify the distinction between works of applied art[, which are] protectible under the bill[,] and industrial designs [, which are] not subject to copyright protection.”
The House Report attempts to further define this vague line, stating:
The test of separability and independence from “the utilitarian aspects of the article” does not depend upon the nature of the design – that is, even if the appearance of an article is determined by esthetic (as opposed to functional) considerations, only elements, if any, which can be identified separately from the useful article as such are copyrightable.
This second hurdle would apply to sports celebration moves only if the celebrations were seen to be necessary parts to the game itself.
Sports Celebration Move Copyright Analysis
Are sports celebration moves copyrightable?
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Offering sports celebration moves copyright protection is in line with the purpose of copyright.
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The purpose of copyright is to encourage authors’ individual efforts with a profit incentive.
As noted above, athletes have a momentous opportunity to profit by creating celebratory moves and dances, which ultimately draw fan and media attention to their individual successes on the playing field. It follows that, as the attention to their respective success on the playing field increases, an athletes’ opportunity to earn money from more lucrative endorsement contracts and additional financial incentives also escalates.
While the incentive to profit is certainly a motivating factor for athletes to put forth the individual effort in creating these moves, it is not the lone reason why athletes create celebratory dances. Athletes, like Jamal Anderson, create the moves to ignite the fans’ enthusiasm, and contribute creatively to the game they love. In other words, they seek to advance the public welfare. Anderson explained the reasoning behind his Dirty Bird dance saying, “[w]e [had] to do something to kind of give the people a symbol of the Dirty Birds. I just made up the dance.”
Affording athletes copyright protection encourages them to put forth their efforts in creating original, celebratory dances, with the incentive to profit. In turn, these victory dances will advance the public welfare by furthering the fans’ enthusiasm and the thrill of sport. Therefore, the rationale for protecting these moves is fully consistent with the purpose of copyright.
Sports celebration moves can easily meet the copyright requirements.
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The Copyright Act sets forth three requirements that must be satisfied before a work can become eligible for copyright protection. Works must: (1) be original; (2) be fixed in a tangible form; and (3) fall within the subject matter of copyright, in order to be copyrightable.
Requirement #1: Originality
To satisfy the requirement of “originality,” “a work must be: [(1)] independently created by the author[;] and [(2)] possess at least some minimal degree of creativity.”
Independent Creation
“The copyrighted work need not be novel, merely independently originated in the author.” This prerequisite does not create a high barrier to the copyrightability of sports celebration moves.
Most often, an athlete choreographs a celebratory move as a matter of self-expression. His aim is not only to create a novel work, but also to choreograph a work that directly expresses his feelings when he scores a touchdown or slugs a towering blast over the outfield fence. Therefore, these works are almost by definition “independently originated in the author.”
Creativity
To satisfy the creativity requirement, the Second Circuit noted, “[a]ll that is needed to satisfy both the Constitution and the statute is that the author contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own.’”
In one of the few cases to discuss the copyrightability of ordinary sports moves, the Seventh Circuit in Baltimore Orioles, Inc. v. Major League Baseball Players’ Ass’n, stated that, “[o]nly a modicum of creativity is required for a work to be copyrightable.… [T]he Players' performances [therefore] possess the modest creativity required for copyrightability.”
In accord with the Seventh Circuit’s analysis in Baltimore Orioles, if ordinary sports moves satisfy copyright’s creativity condition, sports celebration moves are sure to possess the minimal creativity required for an original work. Often, ordinary sports moves such as a golf putt or a pitcher’s motion are literally going to exhibit a merely trivial variation over a previous golf putt or another pitcher’s motion. However, a choreographed dance, specifically designed by an athlete to be as creative, and attention grabbing as possible, is certain to possess the required “modicum of creativity.”
Moreover, policy suggests that the fans, not the courts, be the ultimate trier of fact in determining whether a move exhibits a sufficient quantum of creativity. Justice Holmes asserted this principle in Bleistein v. Donaldson Lithographing Co.:
It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. … [I]f [authors’ works] command the interest of any public, they have a commercial value -- it would be bold to say that they have not an aesthetic and educational value -- and the taste of any public is not to be treated with contempt.
In applying Justice Holmes’s assertion to the current analysis, it appears that the low standard of “the interest of any public” has been met when one observes the explosion of public interest in sports and the fans’, at least minimal, acceptance of athletes’ sports celebration moves. This seemingly indicates that fans have found in favor of athletes’ sports celebration moves. Whether judged by the courts or by the public, sports celebration moves should most certainly survive this obstacle.
Requirement #2: Fixation
The Copyright Act requires that “original works of authorship” [be] fixed in any tangible medium of expression, now known or later developed.” This precondition may provide a slightly higher barrier for choreographic works “because unlike other works, [they are] created in a spatial environment.” Therefore, while other works, such as novels, exist for the purposes of copyright the moment the words are laid out on paper, authors of choreographic works must complete an additional step in an effort to “fix” their works.
The current Copyright Act accepts any methods of fixation “in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The current Act broadens the scope of this requirement, making it significantly easier for authors of choreographic works to satisfy the condition.
With the ubiquity of modern technology in the form of digital still cameras, sophisticated video cameras, cell phones that are able to record sounds and images, voice recording devices, and computers, it would not be difficult for an athlete to “fix” his choreographed, sports celebration move. However, this requisite can be easily satisfied even without using these rapidly improving technologies. Dance notation or recording the moves on paper would be equally as effective.
Requirement #3: Copyrightable Subject Matter
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This requirement provides, perhaps, the most formidable barrier that a work must survive to receive copyright protection.
The Act’s legislative history indicates that Congress has the ability to expressly include sports moves as copyrightable subject matter.
However, even if athletes’ sports celebration moves are not expressly included in the subject matter of copyright, these choreographed moves may nevertheless be considered eligible for copyright protection as choreographic works. Choreography is defined in Horgan v. Macmillan as:
the composition and arrangement of dance movements and patterns, and is usually intended to be accompanied by music. Dance is static and kinetic successions of bodily movement in certain rhythmic and spatial relationships. Choreographic works need not tell a story in order to be protected by copyright.
“The Act [, however,] does not define choreography.” Additionally, the legislative history indicates only that choreography, as it used in section102 (a) of the Act, does not include "social dance steps and simple routines." “Thus, for example, the basic waltz step, the hustle step, and the second position of classical ballet are not copyrightable.” These basic steps are regarded as ideas under the idea/expression dichotomy. Ideas are expressly prohibited under section 102 (b) of the Act.
Can sports celebration moves survive the idea/expression hurdle?
Section 102 (b) of the Act implies that “social dance steps and simple routines” are not copyrightable. It states, “[a]n idea can never be copyrightable, but its expression may be.”
In this case, simple dance steps are considered basic ideas for the purpose of copyrighting choreographic works, just like individual words are considered basic ideas for the purpose of copyrighting a literary work. Ideas, or in this case simple dance steps, are the “basic building blocks of [any] copyrightable expression.” Thus, to grant a monopoly in the building blocks of copyrightable expression would be to curtail future creativity, and hence, be counterproductive.
Therefore, 102(b) may limit some very simple athlete celebrations like the “high-five,” the “monster bash,” or Terrell Owen's “Eagle Flap,” which all consist of one or two basic movements. However, “a restriction against the incorporation of [several] social dance steps and simple routines” does not exist.” “Social dance steps, folk dance steps, and individual ballet steps alike may be utilized as the choreographer's basic material in much the same way that words are the writer's basic material.” While each word may be regarded as an uncopyrightable “idea,” an original, creative compilation of words will be treated as a newly created copyrightable expression of those ideas. Hence, in this case, while each simple step may be considered an uncopyrightable idea, more complex sports celebration moves that incorporate many steps, such as the “Ickey Shuffle” or one of Chad Johnson’s complex dances should be treated as a newly created copyrightable expression of those ideas and “[should thus] rise to the level of more complex choreography as contemplated by the statute.”
Can sports celebration moves survive the Functionality hurdle?
The functionality of useful articles serves as, yet, another restriction on works seeking copyright protection. According to the functionality doctrine applied in Fabrica Inc. v. El Dorado Corp., “if an article has any intrinsic utilitarian function, it can be denied copyright protection except to the extent that its artistic features can be identified separately and are capable of existing independently as a work of art.”
Ordinary sports moves, like the “method or process for throwing a pitch in baseball … or …performing more accurate putts,” may be categorized as purely functional and may, therefore, be denied copyright protection. However, sports celebration moves are more expressive, creative, and only tangentially related to the goals of a particular game. And would, therefore, most likely clear this hurdle to copyright.
To better understand this principle, one might contrast
an athlete’s movements in pursuit of scoring a touchdown in a football game with his movements in celebration of having scored (for example, while performing a [sports celebration move]). The former movements seem to be primarily functional in nature, since their chief purpose is the scoring of a touchdown and, ultimately, the winning of a game, whereas the [sports celebration move] seems purely expressive and irrelevant to the goal of winning.
Further, it has been argued that “sports are inherently nonfunctional … [and thus] functionality should not be seen to exclude any sports moves from copyright protection.” Regardless of whether all sport moves should be copyrightable, purely expressive sports celebration moves should certainly not be hampered by the functionality doctrine, because they serve only as a tangential element of any game.
So, are sports celebration moves copyrightable?
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It would seem from this analysis that unique, independently created, complex, choreographed sports celebration moves would meet all of the requirements and survive all of the hurdles of copyright law.
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