This is the last of three postings dealing with copyright in movement. The first was on choreography, the second was on Yoga, and this one is on athletics. But just like the choreography posting was also about the utility of the copyright system, this one touches on the utility of labels or categorization as a way to decide whether protection should be granted.
There have been a number of interesting looks at the topic from the standpoint of cognitive science, including collections of essays in Similarity and Categorization , edited by Ulrike Hahn and Michael Ramscar (Oxford U Press 2001), and Handbook of Categorization in Cognitive Science, edited by Henri Cohen and Claire Lefebvre to be published in October by Elsevier. Steven Winter has an interesting chapter on categorization and "reasoning" by analogy in A Clearing in the Forest: Law, Life, and Mind (2001). And Judge Posner has an extensive review of the issue on pages 86-100 of The Problems of Jurisprudence, which he begins as follows: "The heart of legal reasoning as conceived by most modern lawyers is reasoning by analogy. This method of practical reasoning has an impeccable Artistotelian pedigree but no definite content of integrity; it denotes an unstable class of disparate reasoning methods."
As Judge Posner notes, analogies are sometimes used inductively, that is, we have had experiences in the past (like owning Volvos since 1963) and so think that if a new type of car is said to be like a Volvo, we expect it to share known features, understanding though that the new car isn't a Volvo but may share some of its characteristics. Another use of analogy is to to regard it as a form of authority; A is protected, we say B is like A, therefore B should be protected too. B is, legally, no different from A.
In protecting scripted movement, choreography stands as "authority" in this sense because it is a statutorily enumerated type of subject matter in the Copyright Act. As a class, choreography is protected; whether any individual piece of choreography will be protected turns only whether it is "original." Yoga shares with choreography both its movement and its scripted nature, and we can assume that any given yoga series can be "original" in the sense of not being copied. Bikram may have been the first to select 26 out of 84 or more ancient postures. But, yesterday I took the view (which I adhere to) that Bikram's yoga sequence did not give him any right to prevent others from performing that exact sequence, or I would add here, from inserting new ones or subtracting from the 26. Bikram claimed that the sequence was designed to and did create health benefits, and I regarded it as a Section 102(b) process. So, while yoga shares some characteristics with choreography, others it doesn't are to me determinative.
What about athletic routines, like figure skating or football plays? There have been attempts to secure protection for football plays, beginning in 1984 with registration of a I-Bone formation with the Copyright Office by two Texans, James Smith and Joey Lorenzo. The Copyright Office took the view though that the registration did not cover the performance of the formation. See Craig Neff, "Whose Bone is it, Anyway?" Sports Illustrated, January 23, 1989, at p.7. In arguing for protection, a law review notes state that "Football plays can be described on paper in ways analogous to dance steps." Brent Moberg, "Football Play Scripts: A Potential Pitfall for Federal Copyright Law?", 14 Marquette Sports L. Rev. 525, 540 n. 115 (2004). But that's not the point, although it does present the analogical reasoning issue I am interested in.
The point is whether football plays, all of which involve motion and some of which may be scripted in part, share the key attributes that led to Congress to protect choreography. In other words, are football plays (B) legally so close to choreography (A) that B is A? How do we make that determination?
Calling football a "sport" and choreography "art" doesn't help unless those categories have defined characteristics and those characteristics have relevance to the facts at hand and to the legal issue too. I think we have to first identify the salient features of originality in choreography, those things that result in choreography being protected: is it the presence of choices, and the purely aesthetic purpose? For something to be protected analogously to choreography, it would have to share those features and not have others that disqualify protection. Yoga, for example, has a utilitarian function and is probably not concerned with aesthetics in the sense that the movements are not principally designed to be aesthetically pleasing. Football is also functional: get to the other end of the field, and it has rules that restrict choice. And, of course, the football script is only for one side, and varies as soon as the play starts due to the other side's reactions. But what about figure skating? Not functional, and scripted.