With the Pan Am and Parapan Am Games (the “Games”) upon us, IP enthusiasts are eagerly debating the issues surrounding the Games with respect to – well, IP law. One of the many debates permeating conversations is whether athletes can protect sports moves as intellectual property. For example, can a swimmer copyright a secret way of pulling their arms through water? Can a coach protect an unbeatable team formation in field hockey? Can a gymnast lay claim over a flawless rhythmic routine?
As is the case with many questions of legality, the typical answer to each of the above questions is: “it depends”. Section 5 of Canada’s Copyright Act (the “Act”) stipulates that copyright persists in “every original literary, dramatic, musical and artistic work”. Dramatic work is defined as “any piece of recitation, choreographic work or mime, the scenic arrangement or acting form”. Arguably, some sports moves could be characterized as a choreographic work. For example, although the World Wrestling Federation has not claimed copyright protection over its wrestling matches, a reported scandalous leaked script last year suggests that the shows are in fact choreographed.
In 1991, in the case of FWS Joint Sports Claimants v Canada (Copyright Board) (“FWS Joint Sports”)[1], the Federal Court of Appeal had to decide whether a decision by the Copyright Board to deny copyright over a football play was valid. The FWS argued that copyright protection should persist, however, the Board was of the view that, unlike dance, a sporting event is for the most part a random series of events. The Federal Court of Appeal agreed with the Board. The Court stated that a mere spectacle is not sufficient to attract copyright protection because it is inconsistent with the concept of choreography: “what transpires on the field is usually not what is planned, but something that is totally unpredictable.” The Court elaborated by explaining that ballet choreography is copyrightable, stating that “[n]o one bets on the outcome of a performance of Swan Lake”, as the choreography is set and the performance is highly predictable. In the same decision, the Court also held that playbooks or game plans could be protected by copyright. Essentially, the decision suggests that scripted moves are protected under the Act. However, in another interesting case, a U.S. court determined that the sequenced combination of yoga moves by yoga guru Bikram Choudhury were not copyrightable. These cases cause controversy and ultimately raise the following question: What exactly amounts to ‘choreography’ under the Act?
Looking at the array of Pan Am and Parapan Am sports, it is apparent that some are more likely to attract copyright protection than others. Beach volleyball, wheelchair Rugby or water polo are unlikely to find protection from the Act even if a team’s coaches and athletes meticulously scripted and recorded some of the main moves for the Games since the presence of direct opponents would inject significant unpredictability to matches. Copyrightability aside, this unpredictability is what makes sports so exciting, it keeps fans glued to the TV screen and live observers gripping the edge of their seats.
Other sports are more choreographed and give the athlete greater control over his or her moves. Arguably, equestrian and gymnastics involve more choreography than a scripted event like wrestling. Therefore, Canadian gymnast Hugh Smith and equestrian Jessica Phoenix may technically protect their routine under the Act. However, aside from being a copyrightable subject matter, the work in question also has to be ‘original’. In Canada, to qualify as being ‘original’, the work must have been independently created by the author, who had to use some skills and judgment when executing the work, as set out in in CCH Canadian Ltd v Law Society of Upper Canada. It is unlikely that Hugh Smith and Jessica Phoenix invented the moves in their routine. Rather, they likely borrowed and built on proven moves used by other athletes, who themselves borrowed from their predecessors, and so on.
Given the strict criteria a work has to meet to qualify as a copyrightable work under the Act, it is unlikely that any of the Games’ athletes will try to classify their glorious sports moves as intellectual property at this juncture. Hopefully, in keeping with the Games’ motto – ‘United We Play’, all Pan Am and Parapan Am battles will be fought on the fields, pools and tracks rather than in the court room.
Gosia Piasecka is an IPilogue Editor and a JD candidate at Thompson Rivers University Faculty of Law.
[1] 1991 CarswellNat 157, [1992] 1 F.C. 487.
