IN A LEAGUE OF ITS OWN: SHOULD INTELLECTUAL PROPERTY LAW PROTECT SPORTS MOVES?

• Author: Kett, Jacqueline
• Position: NOTE

ABSTRACT

The most famous sports moves rattle the pop culture Zeitgeist. Commemoration of these plays can solidify athletes as household names. Yet innovative moments are not often afforded any type of intellectual property protection. This Note categorizes sports moves to determine how each pushes the borders of different types of intellectual property protection. While patents, copyright, and trademarks have historically provided some protection to past moves, none can provide a stable mechanism for future moves. Additionally, enforcement under the right of publicity and trade secrets often fails to fill in the gaps. This Note seeks to explore whether enforcement truly matters by analogizing sports moves to "negative spaces": areas where intellectual property protection does not exist. This analysis aims to provide insights as to whether intellectual property protection of sports moves is truly valuable to future innovation.

CONTENTS Introduction I. A TAXONOMY OF SPORTS MOVES A. Signature Styles B. Singularities C. Scripted Plays D. Celebratory Movements II. POSSIBLE SOURCES OF INTELLECTUAL PROPERTY PROTECTION A. Patents 1. Abstraction and Utility 2. Novelty and Non-Obviousness B. Copyrights 1. The Subject-Matter Debate 2. Originality and Creativity Requirements C. Trademarks D. Right of Publicity E. Trade Secrets III. THE UNEASY CASE FOR PROTECTION A. The Discomfort in Protecting Sports Moves B. Negative Spaces and Their Effect on Innovation C. Private Rules and Community Norms CONCLUSION INTRODUCTION

In July 2019, the National Basketball Association partnered with Dapper Labs to create a "revolutionary new experience in which jaw-dropping plays and unforgettable highlights become collectibles that you can own forever." (1) This venture, known as NBA Top Shot, allows users to buy a digital clip, known as a non-fungible token (or "NFT"), of a famous NBA moment--essentially a one-of-a-kind digital trading card. (2) NBA Top Shot advertises that "[n]ow you can make those plays yours, all officially licensed by the NBA and minted on the blockchain in limited supply." (3) Each NFT varies in rarity; some plays sell up to 10,000 copies while others are sold to only one user. (4)

Within five months of its launch, there were more than 800,000 registered accounts with 338,000 users owning at least one NFT on the platform.5 With over $49 million in sales on the NBA Top Shot app and $460 million in sales on the secondary market, the NFT market was clearly a slam dunk. (6)

Notably, owners of the NFTs do not have any ownership or rights over the moment, but instead they own "a digital certificate, kind of like a digital barcode, which certifies that a person owns that specific video clip." (7) Nonetheless, NFTs show how large the potential market for individual sports moves could become, if they can be properly protected. The law has long held that "if [certain works] command the interest of any public, they have a commercial value ... and the taste of any public is not to be treated with contempt." (8) If intellectual property rights are designed to protect ideas of value, and sports moves have been shown to have value, shouldn't sports moves be protectable?

There are two reasons why athletes may want to obtain legal protection for their movements. First, many athletes have a short window of "primary earning years" (9) and as a result, athletes often try to develop their personal brands off the field as a source of revenue. (10) Cognizant that any moment could result in a career-ending injury or that they could be abandoned by a team, smart athletes adopt long-term strategies to ensure financial safety.

Second, outside of immediate financial concerns, athletes may also want to protect their moves for competitive reasons. Because intellectual property rights encompass a right to exclude others, (11) an athlete with intellectual property rights on a move could prevent their competitors from using it in competition or require their competitors to license the move from them. (12)

While previous works have discussed the limits of legal protection for sports moves, (13) there have been rapid changes in intellectual property law within the past twenty years. In 2011, the Leahy-Smith America Invents Act recodified patentability requirements. (14) Copyrightable subject matter has changed. (15) The trademark system has become an increasingly popular way for athletes to protect their personal brands. (16) While publicity-rights cases historically delineate when an athlete can exclude others from using their identity, identity is a continually evolving concept. (17) Finally, in the post-Money ball era, (18) sports teams themselves are harboring "increasingly sophisticated" information as trade secrets. (19) In light of the changing landscape of both intellectual property law and the sports industry, it is ripe to revisit the extent to which intellectual property rights can protect sports moves.

This Note analyzes whether sports moves are or should be legally protectable under the different mechanisms of intellectual property. Part I proposes four different categories of sports moves and explains the rationale for protecting each. Part II analyzes whether each type of intellectual property could provide a basis for the protection of sports moves. Surprisingly, each type of intellectual property right shows some evidence to suggest future sports moves could be protected under intellectual property's existing structure. Part III explains why there exists a general discomfort with protecting sports moves and discusses the effects on competition if sports moves were to be legally protected. Finally, analogizing to "negative spaces"--other areas that thrive without intellectual property protection--reveals that the argument for the specialized protection of sports moves may be unnecessary.

1. A Taxonomy of Sports Moves

   "Sports moves" encompass a wide range of potential intellectual property assets. Because sports moves can be enormously valuable, and because there is large variety of moves, it is useful to categorize the moves in a way that predicts whether they can be protected and how far that protection would extend. For instance, a unique moment in sports history may receive different protections than a technique repeated by an athlete over and over. While there are certainly many different ways to divide sports moves, this Note categorizes moves by frequency and purpose. In doing so, it recognizes four distinct types of sports moves: Signature Styles, Singularities, Scripted Plays, and Celebratory Movements. (20)

   1. Signature Styles

      The first of these categories is Signature Styles. Signature Styles are moves that one particular athlete is known for executing first or can execute better than others. These moves are often frequently repeated by the athlete. If the motion is particularly distinct or it produces excellent results, it will often lead to notoriety for the athlete. As noted by one sports reporter, " [t]he greatest of the great don't just have a style. They have a signature, an indelible stamp that signifies exactly who they are." (21)

      One example of a Signature Style is the Fosbury Flop. In 1963, Dick Fosbury was a down-on-his-luck high jumper who frequently lost at track meets. (22) Struggling to adjust to the standard forward-facing jump his competitors used (known as the "Western roll" or "straddle"), Fosbury slowly applied some engineering know-how that kept the body's center of mass below the bar and perfected a new belly-up technique. (23) While many considered the move to be "weird" and most were skeptical of the technique, Fosbury won the gold medal in the Olympics just five years later. (24) What was once a quirky move became the norm within two decades. (25)

      Signature Styles often become embedded in an athlete's personal brand. Moves like the Fosbury Flop, the Ali Shuffle in boxing, (26) and the Axel Jump in figure skating (27) immediately evoke the athletes famous for the moves. The Biles (a double-twisting, double backflip) and the Biles II (a triple-twisting, double backflip) are attributed solely to American gymnast Simone Biles--the only female gymnast who has landed either move in competition. (28) Moves like Derek Jeter's Jump Throw (29) and Kareem Abdul-Jabbar's Sky Hook (30) also make the list.

      Scholars are split on whether these moves should be afforded intellectual property protection. Those in favor argue that these moves are often innovative, forever changing the landscape of the sport. (31) The high jump was never the same after Dick Fosbury. Today, every high jumper uses the Fosbury Flop. (32) Yet opposite these arguments, critics argue against protection of Signature Styles as they would denigrate the integrity of the sport by giving an unfair advantage in competition. (33) Had Axel Paulson received exclusive rights to the famous Axel jump in ice skating back in 1882, sixty years later, Dick Button may not have ever completed the first Double Axel jump in a competition. (34)

   2. Singularities

      It was Game Five of the 1989 Eastern Conference first-round NBA playoffs. The Cleveland Cavaliers and Chicago Bulls had split the first four games, leaving each team's fate to the final game. (35) The fans were on the edge of their seats for the entire night. In the final minute alone, the Cavaliers and Bulls traded the lead six times. (36) With three seconds left and the Cavaliers ahead by one point, Bulls player Brad Sellers passed teammate Michael Jordan the ball. What happened next would become sports history. Jim Durham, announcing live on the Bulls' Radio Network described the scene: "Here's Michael at the foul line, the shot on Ehlo--Good! The Bulls win it!... 101-100! 20,273 in stunned silence here in the Coliseum.... sixteen years, this is the greatest series I've ever seen!" (37) This remarkable buzzer-beater became known as "The Shot." (38)

      "The Shot" is an example of a Singularity...