Can Copyright be claimed by Athletes in their Sporting Performances?

One may question whether athletes would be able to claim copyright on their performance.  It is well known that artists are able to do so and in fact do claim copyright on their work, such as song writing.

The answer as to whether athletes can claim copyright would affect not only the athlete directly, and their teams but also the entities that usually lay exclusive claim to the rights to exploit the event,  such as sponsors and broadcasters.

The most important point which need addressing is whether athletes are, in the context of their sporting event, preforming or producing a qualifying “work” in relation of copyright legislation. If the answer is in the positive then they would have a claim over the exclusive rights to control the distribution of their work.

Maltese law provides that “works” shall be eligible for copyright if they are either:

1. artistic works;
2. audiovisual works;
3. databases;
4. literary works;
5. musical works.

From the above the one where athletes performance could possible fall under would be ‘artistic works’.  The law defines it as including paintings; maps; diagrams; sculpture; photographs; works of architecture; works of artistic craftsmanship. Therefore, after analysing the definitions provided in law relating to what amount to “works”, it would be difficult to come to the conclusion that a performance would indeed fall under this definition.

The law goes on to define ‘performance’, whereby it states that it is the direct rendition of the work to a public which takes place under such circumstances that the works performed can be perceived by the public without any intermediate communication.  Therefore, could the performance of an athlete fall under the definition?  The law does not directly include athletes.

In the case of ‘Infopaq International’ the European Court of Justice (ECJ) has analysed the Copyright Directive, whereby it stated that copyright within the meaning of Article 2(a) is only applicable in relation to a subject-matter [work] which is original in the sense that it is its author’s own intellectual creation.  Moreover, for the purpose of copyright protection, the term “literary and artistic works” is understood to include every original work of authorship, irrespective of its literacy or artistic merit.  The form of expression must be the original creation of the author.

The question as to whether sporting events can be considered as “works” to qualify for copyright protection was addressed in ‘Football Association Premier League Ltd (FAPL) and Others v QC Leisure and Others’.  In this case, FAPL, who runs the Premier League in the UK, distributed and marketed the television broadcastings rights for the matches based on territorial exclusivity.  Certain companies in the UK were using foreign decoder cards, issued by a Greek broadcaster to subscribers in Greece, in order for them to access Premier League matches, instead of paying FAPL for broadcasting rights.

FAPL brought an action against them claiming that such activities undermined the value and exclusivity of their television broadcasting rights.

The ECJ stated that ‘FAPL cannot claim copyright in the Premier League matches themselves, as the matches cannot be classified as works (…) to be so classified, the subject matter concerned would have to be original in the sense that it is its author’s own work intellectual creation’.

The Court went on to say that ‘football matches cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive.  That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright (…) It is, moreover, undisputed that European Union law does not protect them on any other basis in the field of intellectual property.’

After analysing what the Court has stated, one can conclude that a sport event which is susceptible to rules cannot amount to ‘work’ for the purpose of copyright law, because a person does not have the freedom to create ‘work’ of original intellectual creation which falls within the parameters of copyright law.

It is ,thus, safe to conclude that the majority of sportsmen cannot obtain copyright for their sporting performance, given that sport is rule bound and, therefore it prohibits them from the creative freedom which, would amount to a ‘work’ in terms of copyright law.

However, certain sport are less rule bound and thus, the person would be in a position to express and create their thoughts into practice.  For example ice-skating and gymnastics provide a certain extent of freedom onto the athlete to express and create their own choreography.  It is true that dancers, ice-skaters and gymnasts have rules to follow, however such rules are not to the same extent as football.  Moreover, the degree of originality is higher than in football.

That said, it is still questionable whether ice-skating and gymnastics performance could fall under copyright law given that, dancers, athletes and the like still have rules to follow, and the freedom to express and create their personal ideas into practice is all-the-same limited.

Although, one may argue that if the characteristics of originality are present then such performances could amount to ‘works’ under copyright law, and athletes could thus be classified as artists.  However one may question how it would be possible to distinguish and classify which athletes and which sport would fall within the ambit of copyright law.

Even though it is widely accepted that most sport performances do not fall under the definition of “works” for the purpose of copyright protection, certain sporting performances which, require a higher degree of original intellectual creation, could, possibly be classified as “works”. One may question why a distinction between the performance of a gymnast and the performance of an artist is drawn up.

One can therefore, conclude that the answer as to whether an athlete’s performance could fall under copyright law is debatable and open to interpretation. Therefore, regulations and national legislation should be clearer in order to provide legal certainty on what can or cannot be considered as “works”.