No Infringement Intended: Insights on Sports and Copyright

For sports fans, certain moments are etched in memory, like Sid Bream sliding into home to clinch the pennant or Kelee Ringo’s interception to seal a national championship. Even celebratory dances, like Ickey Woods’ “Ickey Shuffle,” become part of the sport’s cultural legacy. These are sequences of planned and unplanned movements, which leads us to ask a question concerning intellectual property law: Can a coach’s football play be copyrighted?

The answer, as with many IP issues, relies upon the distinction between a creative, fixed work and a purely functional, evolving activity. While the Ickey Shuffle might find protection in the eyes of the law, the play call that leads to the touchdown likely will not.

The Choreography of the Dance vs. the Play

The 1976 Copyright Act includes “choreographic works” as protectable subject matter. An end zone dance, or “choreography,” is a sequence of planned movements, similar to a traditional dance.

For a dance to be copyrightable, it must be “fixed in a tangible medium.” This means it needs to be recorded on video or transcribed using a system of notation. If a dance like the “Ickey Shuffle” is on video, it meets the fixation requirement. Assuming it has a sufficient level of creativity, like the viral “Floss,” which has a registered copyright, it could achieve protection.

However, the bar for choreographic creativity is subject to scrutiny from the U.S. Copyright Office. The Copyright Office refused to register the “Carlton Dance” from “The Fresh Prince of Bel-Air”, stating that its steps were too simple and short.

Functionality over Creativity in Athletic Events

Now, what about the football play itself? Two examples involving major league sports help us figure out where the line is drawn between art and competition.

In the mid-eighties, during the emerging TV sports boom, baseball players sued their teams over licensing broadcasts. A few cases ended up getting wrapped up into one movement. Crucially, the players actually argued that their performance on the field was not copyrightable. They did this strategically so that the Copyright Act wouldn’t preempt their separate claims to publicity rights (their persona and name).

The appellate court determined two key things. The telecasts themselves are copyrightable works due to the creative production choices made by the crew (camera angles, switching between shots). The court also stated that televised athletic performances “possessed the modest creativity required for copyrightability”. Though the players argued their movements were merely “functional”, the court asserted that “aesthetic merit is not necessary for copyrightability.”

Essentially, the court saw enough aesthetic merit in plays (like a beautiful double play) that it felt the players’ performance was part of the copyrighted broadcast work, thus preempting their separate publicity rights claims.

In a separate case involving a professional basketball league suing a company providing real-time game details, the court tackled the core issue of whether the sports event itself could be copyrighted.

The court found that “sports events are not authored in any common sense of the word” because they lack an underlying script and are competitive. Preparation for a game is more “an expression of hope or faith” rather than a true creative determination.

More importantly, allowing authorship claims over plays or athletic feats would impair the underlying competition. The court argued that if the inventor of a formation, like the T formation, could copyright it, the sport would be severely damaged. This reasoning being that you can’t prevent a competitor from doing the same thing to score points.

The current position taken by the Copyright Office aligns with this basketball case as it follows “functional physical movements such as sports games, exercises, and other ordinary motor activities do not represent the type of authorship intended to be protected under copyright law.”

The True IP Value of the Playbook

Ultimately, the act of running a single play on the field will not be copyrightable. The motion is dictated by function (moving the ball down the field) rather than expressive choreography for its own sake.

However, the comprehensive written compilation of plays referred to as a coach’s playbook likely crosses the copyright threshold for protection. While the individual concepts or plays are not protected, the full playbook which could include the written communication to players, the arrangement of plays, and the sequence of concepts, likely has some level of protection, similar to how an author can copyright a cookbook, even though others can still make the recipes inside.

For coaches and organizations, this means the intellectual property value is not in the execution, but in the proprietary document that defines the strategy and collective knowledge of the team. As with any valuable business asset, it should be protected through agreements that treat it as confidential information.