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805.5 (B) (3) Ordinary Motor Activities, Non-Expressive Physical Activities, Competitive Maneuvers, Feats of Physical Skill or Dexterity, and Other Uncopyrightable Movements in Choreographic Works

 

805.5 (B) (3) Ordinary Motor Activities, Non-Expressive Physical Activities, Competitive Maneuvers, Feats of Physical Skill or Dexterity, and Other Uncopyrightable Movements in Choreographic Works

 

Choreography and pantomime are the only types of works comprised exclusively of bodily movements that are eligible for copyright protection under Section 102 (A) (4) of the Copyright Act. Because choreography is a subset of dance, a work of authorship cannot be registered as a choreographic work unless it is comprised of dance steps, dance movements, and/or dance patterns.

 

Non-expressive physical movements, such as “ordinary motor activities” or “functional physical movements” – in and of themselves – do not represent the type of authorship that Congress intended to protect as choreography. Registration of Claims to Copyright, 77 Fed. Reg. at 37,607. The U.S. Copyright Office cannot register a claim to copyright in such non-expressive activities. See Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (2015) (declining to extend copyright protection in a book describing yoga poses to the yoga poses themselves). Examples of non-expressive physical movements that cannot be registered with the Office include exercise routines, aerobic dances, yoga positions, and the like.

 

The Office cannot register claims to copyright in athletic activities or competitive maneuvers as such, because they do not constitute copyrightable subject matter under Section 102 (A) (4) of the Copyright Act. See NBA v. Motorola, 105 F.3d 841, 846-47 (2d Cir. 1997); Registration of Claims to Copyright, 77 Fed. Reg. at 37,607; but see H.R. REP. NO. 94-1476, at 52 (1976), reprinted in 1976 U.S.C.C.A.N. at 5665 (explaining that Congress intended to protect the telecast of “sports, news coverage, live performances of music, etc.,” provided the telecast is simultaneously recorded).

 

Examples:

 

• Football plays.

 

• Slam dunking maneuvers.

 

• Skateboarding or snowboarding.

 

These types of activities are typically performed by skilled players for the enjoyment of an audience and in some cases they may be accompanied by music or narrative text provided by a play-by-play announcer. However, competitive activities are comprised of athletic maneuvers rather than dance steps, and such maneuvers are non-expressive.

 

Competitive activities lack the capacity for uniform performance because each contest usually involves a different set of maneuvers, and any dramatic content involves the “drama” of the competition rather than a story that is told or a theme that is evoked by the players’ movements. See NBA, 105 F.3d at 846 (“[B]asketball games do not fall within the subject matter of federal copyright protection because they do not constitute ‘original works of authorship’ under 17 U.S.C. § 102 (A)” although “recorded broadcasts of NBA games – ” as opposed to the games themselves – ” are . . . entitled to copyright protection.”).

 

For similar reasons, the Office cannot register feats of physical skill or dexterity or other choreographed productions that do not involve the movement of a dancer’s body.

 

See NBA, 105 F.3d at 846-47; COPYRIGHT OFFICE STUDY NO. 28, at 95 n.13 (1961);

Registration of Claims to Copyright, 77 Fed. Reg. at 37,607.