Copyrighting Sports Celebration Moves
By Eric Goldman
Hank Abromson is a former student/research assistant of mine and an all-around mensch. He recently started a website called “AbromsonOnSportsLaw.com” where he is posting content on various sports law issues.
Of particular interest is his belief that it’s possible to register a copyright in sports celebration moves. He has found Peter Stine, a long-distance runner who has a celebratory dance called PS:I 1, and Hank has filed a copyright application for the moves.
Several commentators have expressed skepticism about the copyrightability of sports celebration moves. The concerns about fixation are a complete red herring (fixation is so easily corrected), but Patry gets to the point:
“I’d be skeptical that shaking your butt and jumping up and down in an end zone is really going to do it,” he said. “Small musical themes aren’t protected,” he added. “It could be that this would fall into that category”
We know that choreography is copyrightable, so the question is–how small/short can a dance be and still qualify as an original work of authorship? 100 steps? 20 steps? 4 steps (like PS:I 1)? There may not be a magic number that applies universally, and I agree with Patry that mere end-zone butt-shaking is neither original nor a work of authorship. However, I am also convinced that a sufficiently long and involved celebration can clear the copyrightability threshold. It will be interesting to see if the Copyright Office thinks a 4 step celebration move does so.
However, even if a copyright registration issues, I wonder–will any registrant ever sue to enforce it? First, there will need to be the requisite infringement, and I suspect courts will be sympathetic if a subsequent performer makes even minor variations in choreography. Second, a properly registered celebration move should be eligible for statutory damages, but I suspect that few courts will consider awarding damages at the high end of the range. (I also suspect that plaintiff rarely (if ever) will be able to prove actual damages.) So a sports celebration move copyright registration could turn out to be a pretty piece of paper that’s not worth a ton of cash.
In any case, Hank is clearly positioning himself as the nation’s expert in the topic. If you’re an athlete who has a celebration move that involves more than end-zone butt-shaking and you think is worth protecting, you should contact Hank. And if the PS:I 1 copyright registration issues, marathoners beware!