I vividly remember watching the 2018 PyeongChang Winter Olympics during law school from the comfort of my home.
I’d watched the Olympics before, but performances in this particular event led me to view figure skating in a new light.
After discovering that a close friend actually taught figure skating—and that I could take figure skating lessons as an adult—I began to become more involved in figure skating as a whole.
This newfound interest, combined with my ongoing love for all things related to intellectual property, has led me to do some research on how figure skating intersects with the various core elements of IP law.
In this article, I’ll discuss a few basic ways for people and businesses in the figure skating industry to protect their goods, services, and content from those who would infringe on their IP.
Note, however, that this is simply a quick overview of the topic.
Only an attorney who has reviewed your entire case can provide the advice you need to resolve a particular intellectual property matter.
Trademarks in Figure Skating: The Basics
If you’ve ever watched a figure skating competition you’ve probably seen a figure skater perform a skill with a name (such as the “Biellmann spin” or the “Salchow jump”).
If you’re new to the sport, you may not know that each of these named skills or elements were actually named either by or for their original creators.
For example, the Biellman spin is named after Denise Biellmann, who popularized the spin in the late 1970s.
The move requires incredible flexibility and concentration, and many people attribute this “trademark” move to Ms. Biellmann.
Note, however, the difference between a “trademark” move (in the vernacular) and a move that can be registered as an enforceable trademark.
Specifically, skills and moves like the Biellmann spin are not registrable as trademarks under current U.S. law.
The only exception is when such moves are directly related to, and used in connection with, a specific good or service.
In the Biellmann spin example noted above, for instance, Ms. Biellmann could show that she used her name in connection with a specific good (such as a clothing brand) or service (such as entertainment services).
If someone took her spin and recorded it as an animation, then it could likewise be used as a “motion” trademark, these are tricky, though.
By doing so, she might be able to register the move as a trademark, provided her case meets certain specific requirements.
Put simply, figure skaters cannot register their skills and moves as trademarks unless they use these moves as a part of a greater brand or service.
For this reason, these athletes often choose to pursue other ways to protect their intellectual property, as described below.
Figure Skating Trademarks You Can Register with the USPTO
Ok, so you can’t register a signature move or skill with the USPTO.
What other options are available then?
As I mentioned above, to register a trademark for federal protection from the U.S. Patent and Trademark Office (USPTO) the trademark (1) must be used as a source identifier for a particular good or service, and (2) must be used in commerce.
For example, if you go searching for a new pair of figure skates you may run into brands such as Edea, Jackson, and Riedell.
Each of these brands sells goods relating to figure skating, and thus use various forms of intellectual property protections to safeguard their brand from the competition.
As another example, I’m currently participating in the Learn to Skate USA program.
The United States Figure Skating Association received a registration for this brand in in September of 2015 by registering it as an educational service.
In each of these examples, the businesses chose to register their intellectual property as a trademark as a way of protecting their interests in, and rights to, the particular product or service they’re offering.
Note that these protections aren’t just limited to shoes and classes, but extend to almost all forms of goods and services that exist in the figure skating world.
From various types of skating equipment to costumes, merchandise, skating rinks, and even the Zamboni brand ice-resurfacing machines, trademarks act as a valuable tool for protecting intellectual property from competitors.
Put simply, while you can’t register a particular skill or move with the USPTO, pretty much everything else in figure skating can be (and probably has been) registered as a trademark.
Could a skater register a copyright for their signature move?
As with the trademark example above, the short and rather unsatisfying answer is that it will generally depend on the circumstances of the case.
However, the odds are most certainly not in your favor.
Current U.S. law defines copyright protections as covering:
Original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.17 U.S.C. 102
As you can see by the code, we’d first have to categorize the move into one of the eight established categories, and then see if the move meets the requirements for originality, fixation, and authorship.
One of the best examples of trying to protect a signature move in this manner doesn’t actually come from figure skating, but, rather, from The Fresh Prince of Bel-Air.
In The Fresh Prince of Bel-Air the character Carlton Banks, played by Alfonso Ribeiro, has a signature dance (“the Carlton”) that he performs whenever he is excited.
Due to its popularity, Take-Two Interactive (the publisher of NBA 2K) and Epic Games (the publisher of Fortnite) each decided to add an emote to their games that resembles Ribeiro’s dance.
Ribeiro, angered that these brands were using what he perceived to be his intellectual property without his permission, decided to file a copyright infringement lawsuit against the companies.
However, the U.S. Copyright Office refused his registration, and promptly ended Ribeiro’s attempt to maintain a copyright infringement lawsuit.
Ribeiro received a refusal from the Copyright Office partially because they deemed the dance as a “short dance routine consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.”
Similar expectations occur in figure skating, and while the odds are that the entire choreographed performance may be protectable, any particular individual move is unlikely going to qualify for protection based.
Which Elements of Figure Skating are Eligible for Intellectual Property Protections?
As we noted above, there are several different ways to protect your intellectual property as a figure skater.
Generally speaking, these methods relate to protecting specific instances of your routine, or the routine’s choreography as a whole.
However, other related forms of art (such as the music you use or the costumes you wear) may also fall under one of the various forms of intellectual property protection.
Choreography and Specific Routines
As we noted above, specific moves or skills are generally not something you can gain intellectual property protections for.
Put simply, commonplace movements or gestures, ordinary motor activities, athletic movements, and any other feats of physical skill and dexterity are not, in and of themselves, eligible for registration.
However, just like with works of visual art, choreographic elements may qualify as a compilation of movements, and accordingly can be registered as copyrightable materials.
As a conceptual example, a musician cannot register a copyright for a particular guitar chord, as doing so would be silly.
However, by arranging a series of guitar chords in a particular manner, that musician could register the composition as a song.
The same is largely true for the various movements and elements that make up the choreography of a figure skating routine.
Put another way, the selection, coordination, and arrangement of the routine is the key form of expression for copyright purposes, and not the elements that make up the routine themselves.
For example, if a step sequence in a figure skating routine includes traditional choctaws, three-point turns, rockers, etc. with no unique entries or arrangement, then it is unlikely the choreography would qualify for copyright protection.
However, if the sequence includes unique moves or uncommon arrangements, it may qualify for copyright protections depending on the circumstances of the case.
Note, however, that any choreography would have to meet the general requirements of originality, fixation, and authorship to be eligible for copyright protection.
Often, these requirements are met by fixing the routine in a written medium for the respective program or by recording it with video.
One of the more obvious elements of figure skating that you can protect under copyright are the costumes.
There are so many color combinations, fabric choices, shapes, and stylistic variations that could all be copyright eligible.
However, copyright protections for fashion can also be highly complicated because current U.S. copyright laws don’t include protections for any form of functional elements.
Further, a recent Supreme Court case regarding uniforms (Star Athletica) has complicated the matter even more.
In this decision, the Court attempted to clarify the division between a useful article of clothing and features included for aesthetic purposes:
A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived asStar Athletica, LLC v. Varsity Brands, INC., Et Al.
a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium
of expression—if it were imagined separately from the useful article
into which it is incorporated.
Put another way, your costume would have to qualify as visual art by itself to receive copyright protections under current copyright law.
This is an intentionally broad category to include pictorial, graphic, and sculptural works.
Taking photos at competitions of people, products, and the scenery may all be protectable.
If you draw or paint with figure skating subject matter, then it could be protectable.
If you like three-dimensional works like sculptures, then your related works may also qualify.
Keep in mind that if you include a specific skater or person within your content, then you generally will need their permission to sell the work.
See appropriation of name or likeness below for more.
Blogs and Literary Works
This blog post about figure skating is also protectable under copyright.
For those of us that have not been skating since we were toddlers or practicing skating like it’s a part-time/full-time job, this works well.
Additionally, I have talked primarily about singles skaters, but Maia and Alex Shibutani have two registered trademarks in association with their blog for the mark SHIBSIBS.
They are an excellent example of protecting each aspect of their work.
Appropriation of Name or Likeness
Outside of intellectual property, there is a right that is based on the right against others profiting from your image or goodwill without your permission.
This has many names like right of publicity.
These types of laws are based on the concept of privacy rights, generally.
Each state has its own law regarding what is required, but generally the defendant must use the name, image, or goodwill of a person commercially.
This is easiest to think of in terms of sponsorships and branding.
Everyone knows Wheaties by General Mills Inc. has a strong history of including popular athletes on the cover of their cereal boxes.
If General Mills were to use an athlete’s image on their box without asking, then any money they made from the unauthorized use would be part of the case.
The same is true when using the likenesses of famous figure skaters or other similarly public individuals.
If you are a figure skater, a brand owner in the industry, or someone who just likes to watch other people perform, there are many ways that you can protect related content.
While registering a trademark for a signature move is probably not likely, you can register a trademark in merchandise and entertainment services.
Additionally, you can seek copyright protection for the content you create like choreography, video, and blogs, etc.
You can also seek patent protection over the machines and systems involved in figure skating the shapes of the boots and blades as well.
Outside of intellectual property, there are other associated rights like the right of appropriation of one’s name or likeness or however your state refers to it.
Talking to an intellectual property attorney can help clarify just how much content or aspects of your business in the figure skating industry you can protect.
- Copyright Basics: What You Need to Know to Protect Your Creative Works
- What is Fair Use and How Does it Affect My Copyright?
- Circular 52: Copyright Registration of Choreography and Pantomine, U.S. Copyright Office — This circular outlines the Copyright Office’s stance on registering copyrights for choreography and dances.