806.5 (B) Ordinary Motor Activities, Non-Expressive Physical Activities, Competitive Maneuvers, Feats of Physical Skill or Dexterity, and Other Uncopyrightable Movements in Pantomimes
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. Non-expressive physical movements, such “ordinary motor activities” or “functional physical activities” – in and of themselves – do not represent the type of authorship that Congress intended to protect as choreography or pantomime.
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.
These types of activities are typically performed for the enjoyment of an audience. However, competitive activities are comprised of athletic maneuvers rather than artistic movements, gestures, or facial expressions, and therefore lack sufficient creative expression. Competitive activities lack the capacity for uniform performance because each contest usually involves a different set of maneuvers, they lack compositional arrangement because athletic movements are rarely organized into a coherent
compositional whole, 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 v. Motorola, 105 F.3d 841, 846-47 846-47 (2d Cir. 1997) (noting that “[s]ports events are not ‘authored’ in any common sense of the word”).
For similar reasons, the Office cannot register feats of physical skill or dexterity that do not involve the physical movement of a performer’s body in an integrated, coherent, and expressive compositional whole.
See id. (concluding that there is a “general understanding that athletic events were, and are, uncopyrightable”); 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).