Copyright in Football: Is it Practicable?
A recent Freaknomics guest post commented on the practicability of copyright protection of football plays. In sum, the authors make the argument that because of the dynamism of football, and the barriers of entry for teams implementing innovative plays, copyright protection is impossible. While I agree with the arguments of the authors, one area that they do not discuss is the rationale behind copyright in the first place, to benefit from the protection in the form of making money.
Coaches at all levels of sports look to gain competitive advantage. One such way is to come up with innovative plays that the opposing coach cannot stop. If a coach were to copyright his plays, the protection secured would do little for the “author.” Presumably the reason the coach would look to copyright his plays is to protect them from other coaches using the plays, but another reason a coach would copyright his plays would be to gain financially from the licensing of these plays. Coaches may be willing to part with their innovations for a fee, but would they really want other coaches to know the exact routes of these plays? There seems to be little financial advantage to copyrighting football plays.
One area of law coaches could exploit would be trade secret law. Coaches could require their coordinators to sign confidentiality agreements requiring them to keep the offensive scheme secret. Like other trade secret subject matter, the play could be reversed engineered without penalty. But if the coach did hope to protect his innovations, it would at least allow a modicum of protection at least until the play is used in a game.
Certainly copyright law is not just simply based on money, but it’s a pretty big factor. As the authors point out, football coaches have the obligation to innovate in spite of copyright protection because if they don’t, they will lose their job for their inability to win games. Copyright law is not appropriate for all forms of creative expression, but sports play creation could potentially be a copyrightable expression. However, due to the competitive drive of coaches and sports teams, it seems highly unlikely that their drive to win and innovate regardless of protection will ever be less than any desire to gain financially from gaining protection of their plays.