Can athletes claim copyright in their sporting performances?Jirí Janák
Whether athletes are able to claim copyright in the sporting events that they participate in is an interesting question, and one to which the answer has crucial implications, not only for the the athletes and their teams, but also for the entities that usually lay exclusive claim to the rights to exploit the event (typically national sports federations, sponsors and broadcasters).
The crux of the question is whether the athletes are, in the context of their sporting event, preforming or producing a qualifying “work” in the eyes of copyright law. If they are, then they would have a claim over the exclusive rights to control the distribution of their “work”.
Strangely – or perhaps as anticipated given the need for this blog – the answer is not entirely clear, so I will endeavour to explore the issue below.
What defines a “work” that qualifies for copyright protection?
Directive 2001/29/EC (the Copyright Directive)
Analysing the Copyright Directive,1 the European Court of Justice (ECJ) stated in Infopaq International 2 that:
“…copyright within the meaning of Article 2(a) of the Copyright Directive is only applicable in relation to a subject-matter [work] which is original in the sense that it is its author’s own intellectual creation…With respect to the scope of such protection of a work, it follows from recitals 9 to 11 in the preamble to Directive 2001/29 that its main objective is to introduce a high level of protection, in particular for authors to enable them to receive an appropriate reward for the use of their works, including at the time of reproduction of those works, in order to be able to pursue their creative and artistic work."3
For the purposes of copyright protection then, the term “literary and artistic works” is understood to include every original work of authorship, irrespective of its literary or artistic merit. The ideas in the work do not need to be original, but the form of expression must be an original creation of the author.4
Under the Berne Convention for the Protection of Literary and Artistic Work, the term “artistic work” includes every production in the artistic domain; whatever the mode or form of its expression.5
Can sporting events be “works” that qualify for copyright protection?
The position in Europe
The question was raised and addressed in the context of football in the joined cases of Football Association Premier League Ltd (FAPL) and Others v QC Leisure and Others, and also in Karen Murphy v Media Protection Services Ltd.6
FAPL, who run the Premier League, marketed and distributed the television broadcasting rights for the matches based on territorial exclusivity. Certain undertakings in the United Kingdom begun to use foreign decoder cards, issued by a Greek broadcaster to subscribers resident in Greece, to access Premier League matches, instead of paying FAPL for broadcasting rights. The FAPL took the view that such activities undermined the value and exclusivity of their television broadcasting rights.
The ECJ stated: “FAPL cannot claim copyright in the Premier League matches themselves, as the matches cannot be classified as works…. [t]o be so classified, the subject-matter concerned would have to be original in the sense that it is its author’s own intellectual creation”.7
The Court continued to conclude:
“sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive. That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright. Accordingly, those events cannot be protected under copyright. It is, moreover, undisputed that European Union law does not protect them on any other basis in the field of intellectual property”.8
Notwithstanding that conclusion, however, the ECJ interestingly went on to say: “…none the less, sporting events, as such, have a unique and, to that extent, original character which can transform them into subject-matter that is worthy of protection comparable to the protection of works, and that protection can be granted, where appropriate, by the various domestic legal orders.“
The position in the United States
The US courts have taken a similar approach. In NBA v. Motorola,9 where the NBA purported thatMotorolainfringed the NBA's copyright on the broadcast of games, the United States Court of Appeals for the Second Circuit stated:
“The underlying basketball games do not fall within the subject matter of federal copyright protection because they do not constitute "original works of authorship" under 17 U.S.C. Section 102(a). Section 102(a) lists eight categories of "works of authorship" covered by the act, including such categories as "literary works," "musical works," and "dramatic works.” 10
The court also noted very interestingly, “What "authorship" there is in a sports event, moreover, must be open to copying by competitors if fans are to be attracted.“11
Beloff, Kerr, Demetriou and Beloff appear to indirectly support the conclusion that sporting events do not attract copyright:
“…where sports clubs are members of a league, it is common to find that the rules of the league deal expressly with the sale of broadcasting rights. Often such rules provide that the league will be responsible for selling rights to broadcast matches played within the league structure. The rules of a league are generally contractually binding upon clubs and this means that clubs subject to such a rule have no latitude to sell rights to their own matches individually to the highest bidder.“12
The point here is that it is not that copyright is conveyed contractually from the athlete (or their club) to the league, but rather that there is no copyright in the sporting event to begin with, and that accordingly the rights to broadcast the event are allocated contractually via the rules of the league (and typically it is the league responsible for exploiting such rights).
What about more creative sports performances?
The examples above only directly examine a narrow spectrum of sporting events. By extrapolating the analysis, however, it is fair to conclude that the majority of sportsmen and women will not obtain copyright in the sporting events they participate in because the rule bound nature of their sports prohibits the necessary creative freedom to allow the sporting event to qualify as a “work” of original intellectual creation for the purposes of copyright law.
However, one can think of certain sporting events that are less rule-bound, more artistic, and at first blush seem to come far closer to being the performer’s own original intellectual creation. This begs the question: can certain sporting events be treated as “works” attracting copyright?
It seems entirely possible that this is the case.13 For example, in sports such as dancing, ice-skating and gymnastics, athletes have freedom to create and express their own choreography; presenting the type of original, individual ideas one can perhaps more easily associate with artists. It is difficult to say, for example, that ice-skaters are bound by rules to the same degree as footballers. The rules of ice-skating operate within more limited parameters, defining the context of the performance and prescribing particular movements, while leaving everything else to the individual athlete(s). This is not to say that footballers’ performances are not original, just that the degree of originality is lower.
Accordingly, it seems that certain sporting events are capable of being treated as works protected by copyright, provided the event permits or requires a requisite degree of intellectual creation. However, despite this analysis, I have been unable to find any court decision that would confirm the approach, and it is fair to say that the line of analysis is not well developed or settled as yet, so it will be interesting to see what future observations bring.
Although it is widely accepted that most sports performances are not classifiable as “works” that qualify for copyright protection, certain sporting performances that require a higher degree of original intellection creation, could, I theorise, be rightly classified as “works” attracting copyright.
As seen above, if the characteristics of uniqueness, originality and individuality are present, then I believe we should accept that these performances are works that attract copyright law. Why should we make a distinction between the original and unique performance of an ice-skater and the performance of an artist? In these cases, the athletes are artists too.
In my opinion, the regulations and national legislations should be clearer in this respect to provide legal certainty on the subject. Currently, as seen above, drawing a dividing line between what can or can’t be deemed a work of authorship is not an easy task.
It should be noted that if football or hockey matches were to be deemed “works” of authorship and attract copyright (or works attracting other related intellectual property rights), then every athlete and team would be entitled to exercise the rights stemming from their sporting performance.
Instead, it is presently the owners of the league, the promoters or the organisers who own the rights to exploit the games, as the teams are playing in “their” leagues under “their” regulations; and it is the league owners who contractually convey these rights to other entities.
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About the Author
Jiri Janak is an attorney-at-law specialising in the fields of sports law, civil and procedure law, and business law. He practices in Prague, Czech Republic for KSD Legal, the award winning sports law firm.