Creativity is at the very heart of sports. Creativity denotes individuality, and that individual moment of brilliance often is the fine line that separates the extraordinary athletes from the ordinary. If one takes the sensational rise of Connor McGregor as a recent example: a creative punch from an unexpected angle in an unexpected moment secured him victory in his championship bout in under 13 seconds. Equally, individual expression is encouraged and rewarded with higher scores in sports such as rhythmic gymnastics, pommel horse and ice skating. This notion of creativity is also at the very heart of copyright law. It is well established that original works of expressions deserve economic and – where available – moral rights protection. Now, of course these two types of creativity are of a seemingly different nature. Nevertheless, the question arises: at what juncture do sporting moves and/or choreographies become creative pieces in their own right and thus protectable as an author’s unique artistic expression? Should Krisztián Berki receive copyright protection for the move named after him in pommel horse? Bob Cousy for his behind-the-back pass in basketball? Anton'n Panenka for his penalty kick in football? Werner Rittberger for his loop jump in ice skating? Dick Fosbury for his flop in the high jump; or even the Yawgoons for their unique incorporation of the everyday into their snowboarding environment? Some commentators remain at odds with the idea of sports being capable of artistic expression, with one suggesting ‘the idea of a quarterback spinning in ballet slippers to the sound of Beethoven seems more ripe for a comedy than a football game’. The relevance of copyright protection is, however, significant. As sports have grown to a global multi-billion-dollar business, whether these forms of expression shall be protected for decades, even after the death of the original athletes, is not irrelevant. Accordingly, this chapter analyses whether sports moves and choreographies fit into the concept of originality and thus whether they are copyrightable.
The doctrine of exhaustion, or the first sale doctrine, is both a fundamental principle of copyright law and an utmost guarantee for lawful owners of cultural goods to exercise their interests stemming from the right of property. Under this doctrine, the rightholder must accept that copies, or the originals of copyrighted works, and other subject matter lawfully placed into circulation by or with the authorization of the rightholder, through sale or in any other form of transfer of ownership, are subsequently distributed by the lawful owner of those copies or originals, if the rightholder received proper remuneration for the initial distribution. This chapter addresses mainly the question whether this doctrine might be applied for the online redistribution of works and other protected subject matter.