805.5(B)(3) Ordinary Motor Activities, Functional Physical Activities, Competitive Events, Feats of Physical Skill or Dexterity, and Other Uncopyrightable Movements
Choreography and pantomime are the only types of works comprised exclusively of bodily movements that are eligible for copyright protection under Section 102(a)(4) of the Copyright Act. Because choreography is a subset of dance, a work of authorship cannot be registered as a choreographic work unless it is comprised of dance steps, dance movements, and/or dance patterns.
"Functional physical movements" and "ordinary motor activities" — in and of themselves — do not represent the type of authorship that Congress intended to protect as choreography. Registration of Claims to Copyright, 77 Fed. Reg. at 37,607. The U.S. Copyright Office cannot register a claim to copyright in functional physical movements that merely implement an idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which the movements may be described, explained, or illustrated. 17 U.S.C. § 102(b). A work may be precluded from registration as a functional system or process if the particular movements and the order in which they are performed purportedly improve one's health or physical or mental condition. See Bikram's Yoga College of India, L.P. v. Evolation Yoga, LLC, 2012 U.S. Dist. LEXIS 177671, at *9-13 (CD. Cal. Dec. 14, 2012) (quoting the Office's policy statement concerning the registration of compilations from Registration of Claims to Copyright, 77 Fed. Reg. at 37,607). Examples of functional physical movements that cannot be registered with the Office include exercise routines, aerobic dances, yoga positions, and the like.
The Office cannot register claims to copyright in athletic activities or competitive events, because they do not constitute copyrightable subject matter under Section 102(a)(4) of the Copyright Act. See Registration of Claims to Copyright, 77 Fed. Reg. at 37,607.
Examples:
• Football plays.
• Slam dunking maneuvers.
• Gymnastic programs.
• Ice skating or ice dancing routines.
• Skateboarding or snowboarding.
• Synchronized swimming.
• Cheerleading routines.
• Marching band routines.
These types of activities are typically performed by skilled players for the enjoyment of an audience and in some cases they may be accompanied by music or narrative text provided by a play-by-play announcer. However, competitive activities are comprised of
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