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SPORTS MOVES – THE NEXT BIG MOVE IN INDIAN COPYRIGHT LAW

- Nilanjana Nair & Krishika Vaishnav



INTRODUCTION


“The possibility of securing exclusive right in sports moves- slam dunks, pitching stances, golf swings -is real. The legal tools already exist, and it may be time for them to be used.”

- Robert M. Kunstadt


Intellectual property law is no stranger to the field of sports. The sporting industry is no longer a couple of sporting fanatics out on the field. It has grown into a billion-dollar industry fuelled by the innumerable trademarks and patents that have been granted to it.

The inclusion of sports move within the ambit of intellectual property protection has been a long- standing debate. From the iconic ‘Ali Shuffle’ to the ‘Nadal Forehand’, every signature move ever created has an undeniable level of creativity and technique involved that makes it unique. These moves are believed to be superior in execution and crucial for the athlete’s success in their respective sports fields. The acknowledgement of such sports moves, as a creative work, could not only dramatically change the way a sport is played but also change the lives of star athletes.

Copyrighting exists to protect the fruits of a man’s work, labor, skill or test from being taken away by other people[1]. This is an avenue that could potentially change the lives of athletes who have spent years perfecting their techniques. It is time for India to consider the inclusion of signature moves within the ambit of copyright law and explore a new facet of intellectual property law and sports.


ORIGINALITY AND SIGNATURE MOVES


The two basic qualifications to be satisfied for a work to acquire protection by virtue of the Indian Copyright Act, 1957 are originality and expression of the idea in a material form. Thus, it is never the novelty of thought that enjoins a creator with a copyright but rather the direct application of the idea in some physical form.


Originality is regarded as the sine qua non of copyright. An ‘original work’ must be a “product of an exercise of skill and judgment”, where ‘skill’ is “the use of one's knowledge, developed aptitude or practiced ability in producing the work” and judgment’ is “the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work”.[2] The level of inventive thought is not brought to question in copyright law but rather the skills and labour along with a baseline of creativity that is considered.


The doctrine “modicum of creativity” which was established by the US supreme Court[3] states that minimum level of creativity is sufficient to prove that the work of the author qualifies for protection. The Indian courts have widely adopted this doctrine[4].Creative works by definition are original and are protected by copyright, but creativity is not required in order to render a work original.[5]


The Nadal Forehand, the move behind Rafael Nadal’s numerous wins and titles, is extremely unique.  It is characterized by the positioning of his racket below the ball which allows him to brush the ball with his racket facing the upward direction producing a spin. In the same instance, he lifts his legs from the ground pushing his body upwards creating a heavy topspin. The result is a spinning, curving, lead-weighted nightmare that leaves his opponents completely helpless. This move clearly displays a level of originality, labor and most of all a specific skill set. A work may be termed as ‘original’ under copyright law, even though he has drawn on knowledge common to himself and others or has used already existing material[6]. Which means that merely because the ‘forehand’ is an existing method does not mean that the ‘Nadal Forehand’ is not copyrightable.


A large portion of what we believe to be the true source of intellectual property law arises from Hegel’s conception of property and personality. The Hegelian theory drew a correlation between the invention or work and the creator’s own personality which had been imbued into the work. This transference of personality made the process of creation entirely individualistic in nature. When devising a new sports move, the athlete is applying his own personal experiences and skill and thereby the outcome of his efforts is a mere extension of himself as an athlete.


CHOREOGRAPHY


The Copyright Act, 1957 in section 2(h) clearly provides that choreographic work is within the ambit of ‘dramatic work’.While the simple moves of dance are not protected under IPR, certain complex moves that involve technique, creativity and movement are protected under the Copyright Act.


Let us look into the moves of the boxing legend Muhammad Ali. He used a move that is now known as the ‘Ali Shuffle’,where he rapidly bounces up and down and shifts from side to side after which his feet shift back and forth with blinding speed as if running with the intention to leave the spot. While his opponent was startled, he would unleash a flurry of jabs knocking him out. Thus, the ‘Ali Shuffle’, is a sequence of well-defined steps which can be construed to mean a ‘choreographic work’ under the Copyright Act.


Moreover, while there may be critics that contend that perhaps the nature of the ‘Ali Shuffle’ lacks complexity, it opens up an avenue for a wide variety of other sports which have artistic influences such as gymnastics or figure skating. There sports are a cohesive combination of dance with intensely complicated athletic prowess. Yelena Produnova, the Russian gymnast is one of the few gymnast to have skills on all four of the gymnastic event i.e the vault, uneven bars, balance beam and floor exercises to be named after her. Her vault move the eponymous ‘Produnova’ consisting of a handspring double front salto gained status of being one of the world’s most complex and dangerous gymnastic moves. The level of risk combined with the skill required to successfully pull off the move granted the Indian artistic gymnast Dipa Karmakar her first bronze medal in the 2014 Commonwealth games.


The fact that only a handful of gymnasts had even attempted the ‘Produnova’ had little to do with a question of copyrightability but rather was based on the difficulty level. Granting copyrights to a move conceived and executed by an athlete through their own athletic prowess can only enhance the likelihood of innovation in sporting field without hampering any underlying competition. It may even pave the way for the new ‘Karmakar’ of gymnastic vaults.


PERFORMER’S RIGHT


The Uruguay Round of Multilateral Trade Negotiation on December 1993 laid emphasis on providing protection to a performer granting the owner of the work certain privileges. As a result of this the parliament enacted a Copyright (Second Amendment Act), 1994 which provided for a special right for performers which is famously known as performer right.


A sportsman can also be considered as a ‘performer’,[7] under the Copyright Act of 1957, as its definition includes ‘any other person who makes a performance’. A performance,[8] is a ‘visual or acoustic presentation made live by one or more performers.’ Nowadays, almost every sport is broadcasted live, and it is impossible to deny their huge viewership across the globe thereby qualifying every sport as a performance.


The extension of the definition of performer to include an athlete is not beyond the ambit of interpretation. By adopting the principle of ejusdem generis as a mode of construction, section 2(qq) of the Act lists an inclusive class of performer. Where general words follow an enumeration of particular persons, it is entirely reasonable to interpret them to include persons of similar class. Thus, it is legally viable to assume that an athlete also falls under the same category or class and is a performer. Moreover, even the listed terms such as the term ‘acrobat’ is extremely broad and could easily be extended to include a gymnast or even a figure skater.


ECONOMIC SIGNIFICANCE


There can be no doubt that both the sports industry and the intellectual property rights industry are incredibly lucrative in monetary terms. It is also well known that the road to success for athletes is incredibly rough. More often than not, monetary benefits to athletes only exists in certain popular sports. Sports such as hockey which is, ironically, India’s national sport is tragically underfunded with players forced to quit the sport in its entirety.


Granting exclusivity to signature moves opens up an avenue that is independent of popularity of the sport within the country. A player, team, or league gains significant benefits from exclusive control over a technique which provides a competitive advantage: it can capture sizeable economic rents by dominating sporting contests or by forcing others to license the invention.[9] Consequently, attorneys are already urging competitors, including players, teams, and leagues, to protect their advances in technique.[10]


It is important to remember that enhancing economic advantage does not deprive the competitive nature of sports. If that were so, fields such as sports marketing would have destroyed the integrity of sports. Rather, it has driven athletes to strive to the level of high-performance athletes who are a part of such marketing contracts. In fact, in most sports advertisements the athlete is often asked to recreate their iconic move whether it is Micheal Jordan’s slam dunk or Dhoni’s helicopter shot. It seems only reasonable that these moves be given the value that even sports marketers can clearly see.

Moreover, the existence of a copyright would at no point adversely affect amateur league athletes or even coaching institutes. The use of a copyrighted signature move can be protected through fair dealing[11]. Amateur athletes can always claim fair dealing as a complete defense to copyright infringement by proving that the use falls within the exceptions carved out.


CONCLUSION


Copyright in sports has always restrained itself to the field of slogans, advertisements and visual recordings in India. But to assume that creativity can only be witnessed off the sports field would be to limit the ambit of creativity itself. Creativity requires passion and commitment and it brings to our awareness what was previously hidden and points to new life.[12]

The Copyright Act ,1957 can embrace this new era of commercialization of sports with little amendment to the Act itself. While the concept of choreography is often associated solely with dance moves, there is no denying the correlation between dance and sports. The right combination of movements is what distinguishes an amateur from a high-performance athlete. Moreover, the performers right can shield the athlete from exploitation by coaches or any other individual.

It is widely believed that the practical implementation of this inclusion will impair the overall nature of the game, but they are ways through which the chaos can be prevented while also providing the necessary protection. One suggestion could be an insistence that all sporting committees must obtain licensing rights of all protected sporting moves. This will ensure an uninterrupted match while at the same time, keeps the interests of the creator intact. Another mechanism that could be implemented is lifting the blanket restriction on signature moves in all sports and adopting inclusion in certain specified sports such as gymnastics.

India should move towards an inclusive and liberal approach in copyright law and acknowledge the impact that such economic benefits will bestow upon an athlete. Granting copyright protection for sport moves will act as a catalyst not only in the development of the sports industry but also in the development of IPR law.

[1]Holy Faith International v. Dr. Shiv K. Kumar, (2006) 3 ALT 319 [2] University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 [3] Fiest Publications Inc. v. Rural telephone Service Co. 499 U.S. 340 (1991) [4] Eastern Book Company & Ors vs D.B. Modak & Anr (2008) 1 SCC 1 [5] Prof. (Dr.) Shamnad Basheer, Are Indian Courts Judgement Copyrightable, SPICY IP (27/01/2008), https://www.spicyip.com/2008/01/are-indian-court-judgments.html [6] VK AHUJA, Law Relating to Intellectual Property Rights, 27 (3rd edition, 2017) [7] Section 2(qq) “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance;] [Provided that in a cinematograph film a person whose performance is casual or incidental in nature and, in the normal course of the practice of the industry, is not acknowledged anywhere including in the credits of the film shall not be treated as a performer except for the purpose of clause (b) of Section 38B. [8] Section 2(q) “performance”, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers. [9] Derek Bambauer, Legal responses to the challenges of sports patents, Harvard Journal of Law & Technology Volume 18, Number 2 Spring 2005 [10] Id. at 9 [11] Section 52, The Copyright Act 1957 [12] ROLLO MAY, The Courage to Create, (2nd edition,1994)

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