Can gymnastics routines be protected by copyright?

By Jasmine Kerber

  1. Introduction: A Short Case Study

In 2013, 1994 Olympic figure skating champion Oksana Baiul sued NBC Sports for copyright infringement, alleging NBC failed to pay her royalties owed for a video of her “Nutcracker on Ice” performance.1 The court dismissed Baiul’s case under Rule 12(c) on the grounds that her claims were preempted by the Copyright Act (and barred by the statutes of limitations and frauds).2 Here, NBC’s motion picture recording of Baiul’s performance was clearly protected under copyright law, giving NBC the right to produce and distribute the video.3 Baiul had no claim to any of their profits.

As I will discuss, the law today makes clear that video recordings of sporting events are protected by copyright. What is not yet clear, however, is whether Baiul’s underlying performance–her sequence of jumps, spins, and footwork–could be protected by copyright as well. The court noted that there is at least a substantial question as to whether it could be.4 This is a new legal question, and one that seems interesting as sports that involve choreographed routines, such as gymnastics and figure skating, continue to grow in the United States.

Few such lawsuits have been brought (Baiul is notoriously litigious),5 but it is worth asking how they might be resolved if they emerged. Hypothetically, what if the Olympic gymnastics gold medalist Simone Biles wanted to copyright her routines so that no one could steal her choreography? This is the question we will explore.

  1. Legal Background

Copyright can protect “original works of authorship fixed in any tangible medium of expression.”6 Only a modicum of originality and creativity is required.7 Works of authorship include literature; music; dramas; pantomimes and choreography; pictorial, graphic, and sculptural works; motion pictures and other audiovisual productions; sound recordings; and architecture.8 Fixation can be in any form–words, numbers, pictures, etc.9

Since 1976, “choreographic works” have been included among the categories of works that are statutorily eligible for copyright protection.10 To qualify for protection, a choreographic work should “constitute an original creation of dance movements to be performed for an audience, conveying some story, theme, or emotional concept.”11 Ballets typify such works.12 Although classical ballets often portray complex storylines, this definition clarifies that conveying a theme or emotion is sufficient for a work to be copyrightable. Thus, a relatively broad category of works may fall under the umbrella of choreography that can qualify for copyright protection. To be eligible for copyright protection, the choreography must always be “fixed in any tangible medium of expression” as well.13

  1. Copyright and Gymnastics

Although no gymnast has yet sued over the copyright of a routine’s choreography, activities similar to gymnastics can provide clues about how such a lawsuit might play out. First, modern dance helps illustrate the types of choreography that count as statutorily protected works of authorship. It has become clear within the past few decades that modern dance satisfies the requirements for copyright protection. In Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., the Second Circuit Court of Appeals held that a dance center where the renowned modern dancer and choreographer Martha Graham had worked owned the rights to seven dances she created.14 This holding suggests that modern dance works are generally copyrightable—both those that tell a story and those that portray a general concept.

The Graham holding is relevant to gymnastics in that much of Martha Graham’s work was quite abstract, describing emotions rather than narratives in a way that is similar to the themes in gymnastics routines (dramatic, cheerful, etc.). Modern dance and rhythmic gymnastics also share historical roots.15 Although women’s artistic gymnastics–the most commonly known type of gymnastics in the United States–does not trace its development directly to modern dance,16 the floor exercise looks in some ways similar to a rhythmic gymnastics routine or a dance performance. Thus, the style of at least some varieties of gymnastics routines resembles choreography that might be eligible for copyright protection.

Gymnastics’ status as a competitive sport, however, could be a complicating factor. Beyond how movements look, their purpose helps determine whether they can be protected by copyright. Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC helps illustrate the difference between sequences of visually attractive movements and copyrightable works of choreography. In Bikram, the U.S. District Court for the Central District of California held that yoga instructor Bikram Choudhury’s sequence of twenty-six yoga poses and two breathing exercises was not eligible for copyright protection because the sequence (the same series some of us may have performed at popular “hot yoga” classes) was deemed a process or system rather than a work of choreography.17 The primary purpose of the sequence appeared to be functional–Bikram asserted his system would improve people’s health–rather than aesthetic in nature.18 Notably, Bikram attempted to argue that the graceful, visually attractive nature of his sequence might qualify it as choreography, but his argument did not prevail.19

Not all gymnastics routines portray emotion. While scores for the floor and beam events in women’s artistic gymnastics include an artistry component, the evaluation of vault and uneven bars does not. None of the men’s artistic gymnastics events evaluate artistry, either. Routines that lack an artistic element could seem more comparable to a yoga sequence than to a dance as far as the elements of copyright are concerned. One could argue that like yogis, athletes aim to stay active and improve their health or skills rather than to fulfill a creative purpose. Thus, the possibility that some gymnastics routines are merely compilations or processes rather than copyright-eligible works of authorship weighs against finding that gymnastics choreography could be protected by copyright.

Finally, when it comes to the fixation requirement, gymnastics choreography is fixed in writing using a specific system of notation that uses symbols to represent each skill.20 As noted, live recordings of all types of sports are protected under copyright law. However, this gives copyright protection to the entity that produced the recording, rather than to the athlete who was recorded. For instance, the court in Baltimore Orioles, Inc. v. Major League Baseball held that baseball clubs owned exclusive rights to the televised performances of their players.21 However, if a game was not broadcast or recorded, the players’ performances would not be fixed in tangible form, meaning a requirement for copyright protection would be missing.22 In gymnastics, however, gymnastics notation might satisfy the fixation requirement for choreography, whether or not the routine is ever recorded. The courts have never ruled on gymnastics notation, but they have suggested that writing out a dance performance using dance notation could satisfy the fixation requirement.23 It seems plausible that a similar analysis would apply to gymnastics notation. That said, gymnastics notation does not capture every detail of a routine, so the fixation requirement might be arguable either way but weighs somewhat in favor of copyright protection.

  1. Conclusion

All in all, questions remain as to whether gymnastics choreography could be eligible for copyright protection, but a decent case could be made that some routines–particularly floor–could be eligible. Gymnastics routines are usually original in that they are created for individual gymnasts, and competition routines are fixed in writing. Floor and beam routines also probably satisfy the low bar of a “modicum” of creativity due to their artistic components. However, creativity makes the copyright of certain routines appear unlikely. It seems plausible Simone Biles might be able to copyright her floor choreography but unlikely that she could copyright her vault. However, there is also a chance that courts might find all athletic routines ineligible for copyright protection due to their purposes for fitness or competition.

It is unclear whether Biles—or any gymnast—would want or need copyright protection for their routines. After all, the culture in gymnastics already discourages “stealing” choreography, plus lawsuits over the copyright infringement of gymnastics choreography have not arisen so far. That said, if a gymnast ever turns out to be as litigious as the figure skater Oksana Baiul, we may find out whether athletic choreography really can be protected by copyright–it seems it could go either way.

  1. Baiul v. NBC Sports, 2016 U.S. Dist. LEXIS 52291, *4 (S.D.N.Y. Apr. 19, 2016). ↩︎
  2. Id. at *13, *57. ↩︎
  3. Id. at *28. ↩︎
  4. Id. at n.9. ↩︎
  5. Baiul has filed numerous suits against myriad defendants over the past few decades alleging that a large “criminal enterprise” formed in the 1990s aiming to steal her money. See Baiul v. William Morris Agency, LLC, 2014 U.S. Dist. LEXIS 62633, *1, *1-7 (2014). ↩︎
  6. 17 U.S.C. § 102(a). ↩︎
  7. 17 USCS § 102. ↩︎
  8. Id. ↩︎
  9. Id. ↩︎
  10. 17 U.S.C. § 102(a). ↩︎
  11. 5 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 5(a) (Matthew Bender, Rev. Ed.).  ↩︎
  12. Id. ↩︎
  13. 17 U.S.C. § 102(a). ↩︎
  14. Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemp. Dance, Inc., 466 F.3d 97, 99 (2d Cir. 2006). ↩︎
  15. Rhythmic Gymnastics: A Flow of Its Own, Chicago Trib. (Jan. 3, 1986), https://www.chicagotribune.com/1986/01/03/rhythmic-gymnastics-a-flow-of-its-own. ↩︎
  16. History, Federation Internationale de Gymnastique, https://www.gymnastics.sport/site/pages/disciplines/wag-history.php (last visited June 1, 2024). ↩︎
  17. Bikram’s Yoga Coll. of India, Ltd. P’ship v. Evolation Yoga, Ltd. Liab. Co., 803 F.3d 1032, 1044 (9th Cir. 2015). ↩︎
  18. Id. at 1036, 1038, 1044. ↩︎
  19. Id. at 1036, 1040, 1044. ↩︎
  20. These symbols are listed in the Code of Points documents published by the International Gymnastics Federation (FIG). See, e.g., 2022-2024 Code of Points: Women’s Artistic Gymnastics https://www.gymnastics.sport/publicdir/rules/files/en_2022-2024%20WAG%20COP.pdf. ↩︎
  21. Balt. Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663, 673 (7th Cir. 1986). ↩︎
  22. Id. at 675. ↩︎
  23. Conrad v. AM Cmty. Credit Union, 750 F.3d 634, 636 (7th Cir. 2014). See also Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemp. Dance, Inc., 380 F.3d 624, n.13 (2d Cir. 2004); Horgan v. Macmillan, Inc., 789 F.2d 157, 160 and n.3 (2d Cir. 1986). ↩︎