In an article recently published by The Daily Record, the idea of copyrighting sports celebration moves was questioned. Because the idea is still in its infancy and because the theory is complex, the questions should be addressed.


Statement: “…choreography is copyrightable; social dance steps are not.”

Response: This is a well-known doctrine of copyright law. The distinction between what is choreography and what is considered a mere social dance step is certainly unclear. One of the most valuable benefits of receiving proof of the copyrightability of a move like the PS:I 1 is that it could establish new legal precedent. It will answer the question that many copyright experts have had, which is where is the line between copyrightable choreographic works and non-copyrightable social dance steps.


Statement: “…most sports celebrations are not fixed in a particular medium. It would be a difficult argument to say that Fox or whatever network is broadcasting the game is fixing it under the author’s authority.”

Response: This is true, which is why no one has attempted to copyright a move that has aired on a telecast. Sports celebration moves are typically performed during games that are aired on national or local television broadcasts. The Court in Baltimore Orioles Inc. v. Major League Baseball Players Association decided that a player would not be able to copyright a move that is fixed in this medium. However, this statement is simply a correct statement of the law that has been misapplied. The idea to copyright sports celebration moves involves the player retaining a professional to record his move either on the field or off of it, but in a medium that is separate and distinct from the television broadcast of the game. An example of this would be the PS:I-1. The athlete had his move recorded in a digital video format, separate from any running event or telecast of that event. With his copyrighted move, it is his right to then perform the move publicly.


Statement: “[Can] a celebration dance meet[] the originality criterion for copyright protection. I’d be skeptical that shaking your butt and jumping up and down in an end zone is really going to do it….”

Response: While it is not clear that shaking one’s butt is the defining characteristic of a sports celebration move, it is clear that the originality requirement is not the key concern when it comes to copyrighting these moves. Moves like the Ickey Shuffle or one of Chad Johnson’s moves are inherently creative and original. These moves are most often made and performed to express a player’s own personality. Because only a modicum, a very small amount, of creativity is required, almost all independently created moves are going to meet the creativity requirement.
Further, one should not confuse the level of required creativity and the level of required complexity, set forth by the idea/expression dichotomy test. The work must pass this test to be considered copyrightable subject matter. This test will be the primary hurdle in receiving copyright protection of a sports celebration move. It is true that a move that simply incorporates a "butt shake" and an "up and down jump" most likely would not survive the Test, because that move would not be complex enough (A thorough analysis of the idea/expression dichotomy test). The same would hold true for a move like the high-five, the mile-high salute, or the spike. However, a more complex move like the PS:I 1 may have enough complexity to survive the Test.


Statement: “A copyright protects the embodiment of an idea, and I am not sure that a particular end zone move or a dance move would really be something that would fall within the scope of a copyright.”

Response: Read above. Essentially, a move would have to be complex enough to survive the hurdle of the idea/expression dichotomy test. Not just any sports celebration move would be copyrightable.


Statement: “This is certainly unfortunate news for “Ickey,” who in 1997 told Sports Illustrated he was supporting his family by selling chicken, beef and seafood.

Response: It is true that an article reported this fact. However, as recently as December 2005, Elbert “Ickey” Woods was still making appearances at autograph sessions and making other public appearances. The question is why would an athlete who had one good year in the NFL still be signing autographs and making appearances fourteen years after his retirement. The answer is that his move, the Ickey Shuffle, created a positive connection between the athlete and fans i.e. potential consumers. This is a perfect example of the value a sports celebration move can hold for an athlete.

For a more thorough statement of copyright law in the area of sports celebration moves, please see the Sports Celebration Moves F.A.Q.