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The sports today are not the same as they were before. The fan following is not only for the sports but also the celebration moves of the team players.
Be it Ravindra Jadeja’s ‘sword’ celebration, where he swings his bat in the air or Harpreet Brar’s ‘thigh’ five celebration where is hi-fives his thigh or spinner Imran Tahir’s running towards the boundary and ending with a lion roar after scalping a batsman, those moves are unique to the players and their own creative expressions.
[Picture Credit: Gettyimage]
A celebrity moves, being so iconic, has its own charism and serves as an identification of the player in a crowded sport. It has been observed that such moves of a player gain more popularity and the player is known for the move. The problem arises when the third parties use certain pictures and sketches of the players imitating their moves, to improve their own goodwill and subsequently, increase the profits. The pictures are attached to different products such as t-shirts, hoodies and phone covers, to misrepresent that the celebrity endorses the product or benefits of the said product. Some of the moves are protected under the trademark law of India but the solution can only be achieved when the moves are protected under the Copyright regime of our country. Therefore, it is essential to analyze whether unique sports celebrations can be accorded the copyright protection or not.
Originality- A prerequisite
Originality in copyright works is the sine qua non of all the copyright regimes of the world. The term ‘originality’ is subject to judicial interpretation but according to the doctrine of modicum of creativity, prevalent in India, originality in a work subsists where a sufficient amount of intellectual creativity and judgment has gone into creation of the work.
Primarily, the required element of originality is fulfilled by the celebratory moves. Since the moves are a part of self-expression of the players, the question of being similar does not quite arise. This is independently the expression of one’s emotions and therefore, is evidently unique. Sports moves and the celebrations by the players are different from the sport that is played and hence, the question of similarity cannot arise.
The unique celebratory moves of the celebrities offer them both merchandisable popularity and the monetary stability during their short-lived careers. Even if a picture of these moves is imprinted on an ordinary apparel, it can transform into a branded apparel. Under these considerations, it is necessary that the athletes possess a litigative or compensational recourse of preserving their copyright, preventing other adversaries from exploiting or claiming rights against the unique moves. An enforcement of copyright safeguards shall encourage more players to come up with their own moves, entertaining the consumers and making them feel attached to the game.
Modicum of Creativity
The United States of America has one of the oldest and most developed Copyright laws across the globe. In Fiest Publications Inc. vs. Rural Telephone Services Co., the hon’ble US Supreme Court held that the work of a creator must not only be a product of independent creation but also exhibit a “modicum of creativity”. The doctrine stipulates that originality subsists in a work where sufficient amount of intellectual creativity need not be high but a minimum level of creativity shall be sufficient for copyright protection. The question in the above mentioned case was whether a compilation in the form of a telephone directory should be protected under Copyright Law? The Court held that the facts such as name and addresses shall not be copyrightable but the unique way of expression and arrangement is copyrightable. Therefore, it was held that a minimum level of creativity is copyrightable.
Protection accorded to Dramatic Work
The primary objective of the copyright protection is to encourage artists, craftsmen, musicians and other creators to make creations available for public welfare and enjoyment. The Indian Copyright Act, 1957 extends not only to literary and artistic works but also to dramatic work which includes choreographic moves that are “fixed in writing or otherwise but does not include a cinematograph film”, as under Section 2(h) of the Act. Therefore, it is a well-established principle that choreography can also be granted copyright protection. The Indian Jurisprudence provides a narrow interpretation on the importance of fixation in case of dramatic works. The Western world is comparatively wider on the same. As far as the precedents are considered, the Supreme Court in Academy of General Education, Manipal & Ors. vs. Malini Mallya, held that the copyright protection can be accorded to a dramatic work only if the same is reproduced in a literary format. The copyright protection can be provided to the creators only when the same has been represented in a written format. The performer’s rights have been clearly expressed under the Act and protects against reproduction, broadcasting or communication of original creations to the public without the consent of the creator and hence, the “person who makes a performance” gains an exclusive right over the creative expression.
Celebratory moves as Choreography
The contention can be supported by certain US Supreme Court decisions. In Baltimore Orioles Inc vs Major League Baseball Players Association, it was argued that the player performances didn’t possess artistic merit, but the Court disagreed by clearly relying on the decision in Gilles-Widmer Co vs Milton Bradley Co. and focused on the principle “Only a modicum of creativity is required for a work to be copyrightable”. The ‘modicum of creativity’ is established in the choreographic representation of sports celebrations and therefore, can be categorized as dramatic works.
Further, in the case of Karen Murphy vs Media Protection Services Ltd, the European Court of Justice observed that events in sports that have a unique and original character worthy of being protected alongside other forms of creative expression can be granted protection under Copyright Law.
Since a player’s celebratory moves take the form of a choreography and are unique and original expressions of their personality as well as passion for the sport, they fall within the purview of the Indian Copyright Act and within the Copyright Law, in general. Moreover, if according to the Malini Mallya Case, the dance routines and sequences can be translated into writing, a sequence of moves adopted by sportspersons can also be reduced to writing and thus, fulfilling the narrow fixation test under the Indian law. As a result, unique celebratory sports moves should be afforded copyright protection to protect the originality of well-known players.
Since the celebratory moves of a sports player are essentially a dance sequence, which are inherently original and adequately confirm their ownership, they’re liable to be afforded copyright protection. If the unique celebrations are not protected, the newcomers and players can take advantage of the already reputed moves. The celebrations should be recognized as a profit-making feature which is unequivocally attributable to certain players. To protect the well-known victory moves, the protection should be provided to these sportspersons. To summarize, the modern jurisprudence can accord protection and ensure subsequent incentives to players under the Copyright regime in India.
Author: Tanya Saraswat – a student of Institute of Management Studies (NMIMS), in case of any queries please contact/write back to us via email firstname.lastname@example.org. or at Khurana & Khurana, Advocates and IP Attorney.