Leslie Chong is a J.D. Candidate at Osgoode Hall Law School
In their thought-provoking New York Times article, Kal Raustiala (professor at UCLA Law School) and Chris Sprigman (professor at Virginia Law School) discuss the implications of extending copyright protection to innovations on the football field. While their article focuses solely on the effects of copyright on innovation in football, the concepts are applicable to other industries, from fashion, to stand-up comedy, and even bartending. Raustiala and Sprigman have highlighted a fundamental tension in IP, and despite the criticism it has since endured, their question remains an important one: does copyright protection spur or stifle innovation?
In the debate that has followed, some have argued that this intellectual property protection would only serve to stifle future innovation in the sport. Since copying is inevitably what fosters the need to continuously update playbooks in order to maintain a competitive advantage, a team’s monopoly over a successful play may prevent others from generating equally creative derivatives from that original. Conversely, others have argued that without the guarantee of protection afforded by copyright in football plays, coaches and teams would have no incentive to produce new maneuvers on the field. These proponents suggest that coaches ought to be afforded the same rights as writers and composers, and that without the prospect of exclusive use of the play and its subsequent rewards, there would be no motivation to devote time and effort into being innovative.
In FWS Joint Sports Claimants v. Canada (Copyright Board), the Federal Court of Appeal held that a coach’s written playbooks and game plans were copyrightable, but the play itself (categorized as a “choreographed work”) would not qualify for protection. Despite this decision, there has not been an apparent stagnation in the development of new or innovative plays in football or any other sports association involved with that lawsuit. Nor has this created a surge of copyright claims from football coaches claiming a monopoly over specific plays. Clearly, coaches do not need the same scope of protection afforded to pharmaceutical companies, novelists, or computer programmers. Necessity and a competitive environment will inevitably foster innovation in football. Recognition for innovation in football will likely come in the form of a trophy rather than copyright protection.
It could be that coaches see no need to copyright their plays, given the unpredictability of the ultimate execution of the choreography. Even with a copy of another coach’s playbook, there is no guaranteed outcome or result, and this uncertainty may negate the need for copyright in football entirely. To highlight this point, compare football to Bikram yoga (a successfully copyrighted style of yoga which involves 26 poses and two breathing exercises performed in a specific order in a room heated to 105 degrees Fahrenheit). Whereas the execution of a football play is wholly unpredictable, the sequence of moves in Bikram yoga is consistently executed “by the book”. As such, copyright protection appears to be more valuable and easily enforceable since infringers could consistently reap the rewards from Mr. Bikram’s innovation (namely, the profit from customers who are seeking to practice this style of yoga). While debate still rages about the copyrightability of Bikram yoga, the comparison serves to illustrate the difference between choreography in sports where the outcome is predictable and those (like football) where the ultimate execution may be a large departure from the planned play.
As the use of intellectual property has slowly infiltrated industries that have historically been without protection, academics and practitioners alike are beginning to wonder where the next frontier for copyright lies. While Raustiala and Sprigman’s ultimate conclusion that innovation thrives differently “depending on the particular logic of innovation in an industry” is true, their major fumbling-block will be convincing others that copying in football is truly detrimental to the sport.
I think this debate over the ‘copyrightability’ of football play demonstrates the far-reaching implications of the extension of copyright regimes to additional areas of ‘works’. However, I believe that allowing people to protect their innovative football plays from being copied would be disadvantageous to the sport itself. Coaches are primarily motivated to create effective plays in order for their team to achieve success on the field. In the event that original plays are copied by other teams, the ‘expression’ would undoubtedly differ from the original, therefore, in effect, each time a play would be carried out it would not be deemed to be copied and would be worthy of a separate copyright in and of itself.
Furthermore. the copyright protection afforded to Bikram Yoga is distinguishable from a football play on the basis that the practice of Bikram can be likened to a ‘compilation’. What is protected is the unique combination of a heated room, with 26 poses and 2 breathing motions. What kind of ‘original expression’ would a football play be?
[…] Copyright and innovation from yoga to football: FWS Joint Sports Claimants v. Canada (Copyright Board) (IP Osgoode) […]
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