by: Pancho Galman 

The basketball gods have once again blessed[1] us with a third matchup in the NBA finals between the Cleveland Cavaliers and the Golden State Warriors – two teams that will forever be remembered in the annals of history. No matter what the result is, they will take their place in the pantheon of illustrious squads revered by sports fans. One may ask, what does it take to attain immortality and be revered by such mortals?

Sometimes, these teams luck out by having transcendental demi-gods such as Russell Westbrook or Lebron James. Other times, these teams are built on a solid set of plays and coaching – such as the “Ubuntu” Celtics[2] or the “Legion of Boom” Seahawks. Teams and plays of note could be seen in the following paragraphs:

• The Michael Jordan and Scottie Pippen led Chicago Bulls of the 1990s played under Phil Jackson’s “triangle offense”[3] – a set of plays revolving around (a) a center at the post area, (b) a forward at the wings, and (c) a guard in the corner. The positioning of these three players forms a triangle. This attack allows for a free flowing offense premised on good spacing, passing, and cutting. In the Philippines, American coach Tim Cone used this formation for his Grand Slam Alaska Milk teams in the 1990s.
• Another popular set in the NBA was the lightning-fast “Seven Seconds or Less” blitzkrieg designed by Mike D’Antoni for the Steve Nash-captained Phoenix Suns teams. His plays were premised on scoring and executing on offense within seven seconds of a basketball game’s 24-second shot clock. This bombardment by the Suns allowed them to score before their opponents were able to set up their defensive strategies. This offense had a mini-resurgence during D’Antoni’s stint in the “Linsanity” era in New York. Today, D’Antoni still uses a run and gun style with James Harden’s Houston Rockets.[4]

• Franz Pumaren’s La Salle teams tired their opponents out with their fearsome full-court press – a tactic wherein the players apply defensive pressure throughout the entire length of the court from the moment the offense throws an inbounds pass.
• The NFL was not short on high-octane offenses either. Mike Martz orchestrated the “Greatest Show on Turf” of the Superbowl-winning St. Louis Rams – an offense that relied on the strengths of its hall-of-fame caliber players Kurt Warner, Marshall Faulk, Isaac Bruce, and Torry Holt, among others.
• Who could forget coach Gordon Bombay’s “Flying V” technique used by the Charlie Conway-championed Mighty Ducks? In this V-formation, the offense skated down the ice like a flock of ducks creating a flowing offense based on crisp, short passes. The V-formation created so much chaos and confusion for opponents that the Mighty Ducks used it in international tournaments; i.e. against Germany.[5]

Being the huge nerds that we are, we at Batas Sportiva ask, “Are these plays protected by intellectual property law, more particularly the laws of copyright”?

What is Copyright?

Copyright is the field of intellectual property that protects literary or artistic works. These range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.[6]

The purpose behind copyright protection is the promotion of the progress of science and the arts. In other words, copyright incentivizes and promotes innovation. Framers of these laws believe that there will be more works in the sciences and the arts if an author receives some sort of incentive or protection over his or her work.

With copyright protection, an author can prevent an unauthorized reproduction of his copyrighted work, among others.[7] In this case, copyright protection prevents other teams from copying and using a team’s plays.

Are Sports Plays Covered by Copyright?

Copyright protection vests upon creation of the work without any registration requirements. The only essential requirements are (a) an original work exists; (b) it must be fixed in a tangible medium of expression; and (c) it must be copyrightable subject matter under the Philippine Intellectual Property Code.

Originality does not mean novelty; it simply means that the work originates from the author, is not copied from someone else, and has a modicum of creativity.[8] A work may be original even though it closely resembles other works so long as the similarity is fortuitous or by chance, not the result of copying.[9] As to creativity, the level required is extremely low, and work satisfies that requirement as long as it possesses some creative spark, no matter how crude, humble or obvious it might be.[10] In terms of sports plays, originality and creativity readily exist, as there are thousands of possibilities in expressing and creating these plays.

Copyright law further requires fixation of the work into a tangible medium. The law does not require the reduction of the work into a certain medium; any corporeal or perceptible medium will suffice. This may range from papers to stone tablets! In this scenario, most coaches will store their plays in their respective playbooks. In this day and age, it would be safe to assume that coaches would not etch their plays in stone tablets anymore. That would be so 2010… BCE.

Lastly, the work must fall into any of the copyrightable subject matter found in the Philippine Intellectual Property Code.[11] These are the more concrete sub-categories of literary, scholarly, scientific, and artistic works such as books, letters, musical compositions, and paintings. Of course, an inquisitive reader would ask “Where do sports plays fit?” It seems that sports plays would most likely fall under “choreographic works”. Unfortunately, the Philippine Intellectual Property Code fails to define what “choreographic works” are.

American decisions, such as Bikram’s Yoga College of India v Evolution Yoga LLC, however, state that choreography represents a related series of dance movements and patterns organized into a coherent whole.[12] It further defines dance as static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.[13] These movements must be more than mere exercises, such as ‘jumping jacks’ or walking steps.[14] Moreover, choreography is “usually intended to be accompanied by music” but “need not tell a story” and need not be presented “before an audience.”[15]

Looking at the above definition of choreography, one can reasonably argue that certain sports plays such as the “Triangle Offense” or the “Full Court Press” can be considered as choreographic works as these are scripted movements and patterns systematized into one whole set. One may even find these similar to dancing, theater, or ballet. This seems to be a reasonable assumption as Horgan v. MacMillan recognized scripted plays, such as the “Nutcracker” ballet, as choreographic works.[16] If these are recognized as choreographic works, it would not be farfetched to classify sports plays under the same class of works.

On the other hand,  copyright law expressly excludes ideas, procedures or system methods or operations, concepts, principles, discoveries, or mere data from the scope of copyright protection.[17] This embodies the principle which ensures that protection under the law extends only to the forms in which ideas and information are expressed and not to the ideas and information themselves. Simply put, no one can claim originality as to facts or discoveries.[18]

This is the reason why recipes are not protected under Philippine copyright law. The same can be said for yoga sequences in American law. Jurisprudence states that  copyright for a work describing how to perform a process does not extend to the process itself.[19]

In this case, some might consider sports plays as procedures or systems that should not be monopolized by coaches or players. These movements may be considered as fundamentals necessary for playing the game and copyright protection might be too much of an encumbrance to the sport. Absurd headlines such as “Sam Barry Sues Phil Jackson, Jeff Hornacek, and Carmelo Anthony for Copyright Infringement Through Unauthorized Reproduction of the Triangle Offense” might even exist. While this will make sports law enthusiasts salivate in excitement, this would be bad for sports leagues in the long run. After all, who wants to see an injunction restraining a team from using the “Full Court Press”?

In sum, copyright protection of sports plays is still a debatable issue in Philippine law and sound arguments could be made for either side of the debate. On one hand, there is sound reasoning behind copyright protection of sports plays – innovation.

On the other hand, this monopoly could ruin the sanctity of the sport by preventing opposing teams and players from using these plays. These restrictions might put rival teams at a disadvantage. With today’s (so-called) emphasis on parity, copyright protection might not exactly advance those ideals.

What do you readers think? Should copyright law be extended to sports plays? Let us know here at Batas Sportiva! (And if you know the three Warriors players in the featured photo, you the real MVP! – Mickey)

Pancho Galman is an editor of Batas Sportiva. He just got his LLM! Woohoo!

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[1] Or cursed. It depends on your point of view, dear reader.

[2] A Nguni Bantu term meaning “humanity”; the Boston Celtics used to chant this to show that they favored collective success over individual achievements.

[3] While the popularity of the triangle offense sticks with Phil Jackson, it was actually Sam Barry, a coach at USC, who created the offense. Jackson had great success with the triangle offense in the Jordan-Pippen Bulls era and the Shaq-Kobe Lakers era. Unfortunately, he could not capitalize on that same success with Carmelo Anthony’s New York Knicks.

[4] Unfortunately, this offense did not work well during D’Antoni’s reunion with Nash in the Los Angeles Lakers. A back injury forced Nash into retirement and D’Antoni could not get Kobe Bryant and Dwight Howard to co-exist.

[5] That would be the last time the Mighty Ducks successfully executed the “Flying V” as teams have properly neutralized that formation in the third installment of the movie.

[6] World Intellectual Property Organization, Copyright (World Intellectual Property Organization) <http://www.wipo.int/copyright/en/&gt;.

[7] Under copyright law, the author has an exclusive right to carry out, authorize or prevent the following acts:

• Reproduction of the work or substantial portion of the work;
• Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;
• The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
• Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental;
• Public display of the original or a copy of the work;
• Public performance of the work; and
• Other communication to the public of the work.

(An Act Prescribing The Intellectual Property Code And Establishing The Intellectual Property Office, Providing For Its Powers And Functions, And For Other Purposes [Intellectual Property Code of the Philippines] Republic Act No. 8293, sec. 177 (1997)).

[8] Feist Publications v Rural Telephone Service Co., 499 US 340, 346 (1991)

[9] Feist 345.

[10] Feist 345.

[11] The following are copyrightable subject matter:

• Books, pamphlets, articles and other writings;
• Periodicals and newspapers;
• Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;
• Letters;
• Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;
• Musical compositions, with or without words;
• Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs for works of art;
• Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial design, and other works of applied art;
• Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography, architecture or science;
• Drawings or plastic works of a scientific or technical character;
• Photographic works including works produced by a process analogous to photography; lantern slides;
• Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or any process for making audio-visual recordings;
• Pictorial illustrations and advertisements;
• Computer programs; and
• Other literary, scholarly, scientific and artistic works. (Intellectual Property Code of the Philippines, sec. 172.1).

[12] Bikram’s Yoga College of India v Evolution Yoga LLC, 803 F.3d 1032,1043 (9th Cir. 
2015).

[13] Bikram 1043.

[14] Bikram 1043.

[15] Bikram 1043.

[16] Horgan v. Macmillan, Inc., 789 F.2d 157, 160 (2d Cir.1986).

[17] Intellectual Property Code of the Philippines, sec. 175.

[18] Feist 345.

[19] Bikram 1038.