3.1. Justification for Promoting Aesthetic Sports in India

Indian performing arts such as folklore, dance and music have made their mark in international figure skating and artistic swimming events. For example: renowned US figure skater Michelle Kwan (Kwan) portrayed the lead female character from the Indian Taj Mahal legend in her performance at the 1996 World Championship Figure Skating Competition. Further, numerous artistic swimming and figure skating performances have been performed to the backdrop of Indian music. At the 2016 Rio Olympics, Mexican synchronized swimmer duo Karem Achach and Nuria Diosdado performed to ‘Aila Re Aila’, a famous Indian song. In 2007, Bulgarian skating duo performed to the popular Hindi song ‘Bole Chudiyaan’ from the film Kabhi Khushi Kabhie Gham and at the 2010 American Figure Skating Championship, Charlie White and Meryl Davis performed to a medley of Hindi music. Unfortunately, Indian figure skaters, artistic swimmers and acrobats have not yet harnessed the untapped potential of Indian performing arts to their advantage. There have only been sporadic performances based on Indian classical dance forms and to Indian music at major international sporting events. For example, Indian artistic swimmer Avani Dave performed to a melody from the popular Bollywood movie Bhool Bhulaiya at the 2010 Commonwealth Games. Not to anyone’s surprise, she came last, a reason attributable to the lack of training facilities in the country (The Globe and Mail Update, 2010). Indian-American figure skater Ami Parekh has popularized Indian costume, music and dance in her figure skating performances in the US and around the world. As a matter of fact, she says that figure skating helped her to discover the Indian inside her (Mittan, 2007). She says, ‘And as I skated, I discovered myself and the inner satisfaction I got when I did skate to Indian music and when I wore Indian clothing and jewelry on the ice. It was all so natural for me.’ If, as an Indian-American, Parekh had no qualms in adorning Indian clothing and jewellery and performing to Indian dance tunes, the vast majority of Indian-born figure skaters, synchronized swimmers and acrobats should be more forthcoming in incorporating at least some elements of Indian culture as part of their performances. Not only will it make their performances indigenous and unique but it will also promote the riches of Indian cultural heritage at an international level. Such sports are a potential medium for promoting traditional Indian performing arts, which has so far received only the limited attention of international audiences. Why can’t a female Indian figure skater incorporate elements from Indian classical dance forms such as Bharatanatyam, Kathak² and others in her performance or for that matter recitation of an Indian folklore? If Kwan could portray the female character from the Taj Mahal story so could Indian figure skaters, artistic swimmers and acrobats³ provided they received some training in the sport and in the performing arts. All it requires would be a little bit of attention and investment into these sports by Indian sport authorities. This will not only help in popularising these sports (which are beneficial for overall human development) but also enable the promotion of Indian performing arts, a symbol of Indian cultural nationalism. At a time when Indian performing arts especially classical Indian dances are losing their prestige to modern dance forms, aesthetic sports can act as a guardian of Indian cultural nationalism by preventing these art forms from further decline.⁴ It is unfortunate that such aesthetic sports are not even listed in the Ministry of Youth Affairs and Sports target list of Olympic sports where India has great potential to excel (Ministry of Youth Affairs & Sports, 2013). This is primarily due to the lack of awareness about these so called ‘soft sports’ (Harley-Jesson, 2017). As a matter of fact, it is likely that most of the Indians are not even aware of the existence of these sports despite their rich legacy. The cultural impact of an aesthetically appealing figure skating routine or artistic swimming or rhythmic gymnastics sequence outside India could be immense. Indian Parliamentarian Shashi Tharoor says that Indian culture has the potential to make the country an influential leader in the 21st century (PTI, 2017). Therefore, a cluster of these sports that incorporates at least some elements of Indian performing arts especially classical Indian dance forms, music and theatre has the potential to boost India’s soft power, just like Bollywood has. Even political scientists concede that India can gain immense global recognition by leveraging its soft power (Lee, 2010). Many developing countries such as China, Brazil and South Africa have already realized the soft power potential of sports. Each of them has been successful in the bidding process for hosting either the FIFA World Cup or the Olympics. While I am not suggesting that India should bid to host the Olympics, the soft power potential of aesthetic sports should command the considered attention of the Indian sports authorities especially because there is a growing demand for Indian culture at an international level. Apart from their soft power potential, aesthetic sports (with the exception of figure skating as it is a costly sport) have the potential to be a commercially successful set of industries without extensive financial investment or sophisticated infrastructure. Just like other performing arts, a mass scale live performance of an acrobatic feat or a sequence of synchronized swimming or for that matter a figure skating routine is a source of entertainment. As a matter of fact, live acrobatic and gymnastic feats were once a popular form of entertainment in India due to the prevalence of the circus in India. However, due to stiff competition from new media technologies, circuses in India are no longer popular. A live performance of acrobatics or gymnastics either performed at a circus or at a stadium can generate revenues through sponsorship and ticket sales. This in turn would improve the living standards of these acrobats or gymnasts or for that matter other performers of these aesthetic sports. In addition, one of the biggest challenges faced by the Indian performing arts sector is the lack of a reliable source of livelihood for a large section of its community (Ernst & Young, 2016: 7). A possible strategy for mitigating their financial hardship could be to foster a collaborative relationship between these performing artists and Indian gymnasts, synchronized swimmers and figure skaters. These performing artists could train these sportspersons in local theatre and classical or folk dance moves, the cost of which might be borne by the respective sports federation. For example, the Gymnastic Federation of India (GFI) could have a panel of skilled Indian classical dancers regularly training Indian female rhythmic gymnasts in a sequence which incorporates Bharatanatyam moves.⁵ Thus, if properly executed,⁶ aesthetic sports can also create jobs for the Indian performing arts industry.

India is yet to realize the potential of sports as a full-fledged commercial industry (Aurora, 2016). This is primarily due to the lack of a comprehensive study gauging the exact size of the industry, its potential and the available opportunities. Aesthetic sports have great commercial potential. Due to a close relationship with the performing arts sector, a live performance of an exotic figure skating routine which incorporates scenes from Kalidasa’s play Shakuntala or for that matter other Indian mythology would leave an indelible impact on the media and entertainment world, that is likely to translate into increased revenues for stadia and ice rinks. The entertainment dimension of sports is a critical factor when you consider that that sports will be the biggest form of entertainment in coming years (Coelho, 2015) Most importantly, if an aesthetic sports performance incorporates elements from Indian performing arts particularly dance and theatre, it will also promote these arts amongst younger Indian generations which has so far have remained aloof from these artistic works (Pradhan, 2017). Traditional Indian theatre and dances are on the brink of extinction and aesthetic sports have the potential to be their saviour. A commercial aesthetic sports industry might also boost employment in other closely inter-related industries such as the costume designers for Indian classical dances, make-up artists and technicians such as lightning designers, scenic designers and set designers etc. Last but not the least, aesthetic sports which are sufficiently creative can also promote sports tourism to and within India. Just as with other creative arts, a sufficiently creative aesthetic sports performance may encourage international tourists to spend money in watching live performances of these sports (Ernst & Young, 2016: 25). However, for that to happen, it is first of all important for India to develop a qualitative aesthetic sports industry which is capable of gaining mass appeal. While exploring specific policy recommendations for developing such an industry is beyond the scope of this paper, many of the general recommendations for reforming the Indian sports industry are also applicable to the aesthetic sports industry (KPMG, 2016: 53).

It should be clarified that even though the Ministry has suggested that the sports industry needs more investment, I am not of the opinion that more funds should be diverted for promoting aesthetic sports and especially if it comes at the cost of India’s welfare goals which should be the Government’s top priority (Ministry of Youth Affairs & Sports, 2013: 3). But what is required is a prudent allocation of the existing sports budget amongst different categories of sports. It is not very clear how the sports budget is allocated amongst various categories of sports. I filed a Right to Information (RTI) application both with SAI (Sports Authority of India) and the Ministry concerning the budget allocated to gymnastics, swimming and winter sports for the financial year 2017–2018.⁷ I sought information regarding the budget allocated to swimming (as compared to synchronized swimming) in the expectation that it was highly unlikely that SAI and the Ministry would maintain a separate record for synchronized swimming. On the same rationale, budgetary information relating to winter sports instead of figure skating was sought. In respect of this application action dated 15 September, 2017, the SAI and the Ministry declined to disclose this information on the grounds that my request was not information as defined under Section 2 (f) of the Right to Information Act, 2005.⁸ I have appealed these orders to the respective First Appellate Authorities which appeal is currently pending.⁹ I also contacted the office bearers of the GFI (Gymnastics Federation of India), the Swimming Federation of India (SWI) and the Ice Skating Association of India (ICESAI) but to no avail. I sent an email to all of these organisation on 30 August 2017 followed by two reminders on 7 September 2017 and 11 September 2017 respectively.¹⁰ All emails sent to ICESAI bounced back.¹¹ On 15 September, 2017, I also called Mr. R.K. Gupta and Mr. Bhavanesh Banga of ICESAI and Mr. Kamalesh Nanavati of SWI on the telephone numbers provided at the Indian Olympic Association’s website but none of these people answered my call. I could not contact the President of GFI by telephone since his number could not be found online.

5.1. Copyright Protection Under Indian Copyright Law

6.1. Purposive Sports

The copyrightability of purposive sports has never been litigated before English Courts. However, the issue has been tackled by commentators in light of the decision of the Court of Appeal in Norowzian v. Arks Ltd. (No. 2)¹⁴ where it held that a dramatic work was a work of action, with or without words or music, which was capable of being performed before an audience. Applying the Norowzian decision, a notable commentator has noted that purposive sports were not dramatic works since they were not presented or consumed as a drama even though there was no clear cut policy rationale as to why improvised dance or drama should be protected but not a football match (Barendt, 2002: 55).

In addition, this issue was considered at the EU level in the joined cases of Premier League v. QC Leisure and Murphy v. Media Protection Services Ltd¹⁵ The European Court of Justice (ECJ) held that purposive sports particularly football matches did not qualify as copyrightable subject matter under the EU copyright law since these were not intellectual creations which could be classified as a work within the meaning of the EU Copyright Directive. According to the Court, football matches were subject to the rules of the game, which left no room for creative freedom, a prerequisite for copyright protection. However, this did not preclude their protection under domestic legal orders. This keeps the room open for the EU member states including UK (so long as it remains a member of the EU) to grant copyright protection to purposive sports.

6.2. Aesthetic Sports

Under Section 1 of the Copyright, Designs and Patents Act 1988 (CDPA), copyright subsists in (i) original literary, dramatic, musical or artistic works (ii) sound recordings or films and (iii) the typographical arrangement of published editions.¹⁶ Aesthetic sports due their close resemblance to choreography can be subsumed within the category of dramatic works due to the inclusion of dance and mime within its form (Elam V, 2015: 1), However, this is subject to the fulfilment of originality and fixation criteria:

7.1. Purposive Sports

In the US, for the first time the courts addressed the issue of copyrightability of purposive sports in Baltimore Orioles, Inc v. Major League Baseball Players Ass’n.²² The primary issue in this case was whether major league baseball clubs owned exclusive rights to the televised performances which were made during the game. The United States Court of Appeals for the Seventh Circuit held that the telecast of a baseball game was a copyrightable subject matter, all rights related to which were presumed to be held by the baseball clubs. In the footnotes, the Court also addressed the argument raised by the defendant about the copyrightability of their performances. It disagreed with the defendant’s argument that their performances were not copyrightable works since they lacked sufficient artistic merit. It concluded by stating that only a modicum of creativity was required for a work to be copyrightable. Leading copyright treatise, Nimmer on Copyright (Nimmer) has criticized the analysis of the Seventh Circuit in the Baltimore Orioles decision on four grounds (B. Nimmer M. & Nimmer D, 2015).

Firstly, Nimmer contends that footnote number seven of the decision stating the Court’s conclusion on the copyrightability of the baseball games did not cite any authority dealing with athletic events. This objection to the Baltimore Orioles decision by Nimmer in my humble opinion is without any merit. No Court until the Baltimore Orioles decision had addressed the issue of copyrightability of athletic events. Hence, when there is no direct authority, none could have been cited. Prior precedents to which Nimmer makes a reference in footnote number seventy of the text do not address the copyrightability of athletic events but primarily to its broadcast. It would have been superfluous for the Seventh Circuit to cite these precedents as suggested by Nimmer. However, it would have been beneficial had it cited precedents on the copyrightability of organized events.

The second ground on which Nimmer has criticized the decision pertains to the non-exclusion of sports as a category of copyrightable works by the Congress under the Copyright Act of 1976. His third contention is regarding the Seventh Circuit’s apparent conflict on the requisite level of creativity essential for copyright protection. He states, ‘the Court acknowledges that creativity was an essential ingredient of a copyrightable work, yet twice expressed doubt about the creativity of the performance of baseballs players on the field.’ I am humbly of the view that this concern as to the Baltimore Orioles decision is redundant as the two examples to which he makes a reference represent a mere reaffirmation of the independence of the creativity of the telecasts from the creativity of the performance. The first instance he refers to is the portion of the decision where the Seventh Circuit states, ‘Moreover, even if the Players’ performances were not sufficiently creative, the Players agree that the cameramen and director contribute creative labor to the telecasts.’ By this, the Seventh Circuit merely elucidates that the creativity of the performance was independent of the creativity of the telecast. Even in the second instance, the Court is simply indicating the mutual non-exclusiveness of the creativity required for making a telecast copyrightable subject matter from the creativity of the performance. In none of these instances does it cast a doubt about the creativity of the Players’ performances. This makes his third concern regarding the Baltimore Orioles decision misplaced. Lastly, Nimmer’s contention concerning the Baltimore Orioles decision rightly stems from the Seventh Circuit’s reasoning which rests on the ‘great commercial value’ of baseball games.

Chronologically, the second in line decision on the copyrightability of purposive sports is National Basketball Association (NBA) v. Motorola, Inc.²³ The primary issue in this case was whether a state-law ‘hot news’ misappropriation claim based on International News Service v. Associated Press²⁴ could survive pre-emption by the federal Copyright Act. The United States Court of Appeals for the Second Circuit while holding that a narrow ‘hot-news’ exception did survive pre-emption also considered NBA’s copyright claim over its underlying game. It held that basketball games did not fall within the list of copyrightable subject matter under Section 102 (a) of the Copyright Act as it did not constitute ‘original works of authorship.’ It went on to state that even though the list under Section 102 (a) was non-exclusive, athletic events were neither similar nor analogous to any of the listed categories. The Second Circuit’s rationale for not extending copyright protection to sports hinged upon its lack of authorship, which it lucidly elucidates as, ‘sports events are not “authored” in any common sense of the word.’

As of date, no higher court in the US has decided whether purposive sports were copyrightable subject matter or not. However, commentators have noted that the Second Circuit’s analysis in the National Basketball Association (NBA) case holds more ground and is presumably likely to be favoured by higher courts (Weber L J, 2000).

7.2. Aesthetic Sports

Under the US copyright law, aesthetic sports can be protected as dramatic and chorographical works provided the originality and the fixation criteria are fulfilled. As per the Compendium of the US Copyright Office (Compendium) for a work to be considered as a dramatic work, it should have: (a) plot (b) characters (c) dialogue/monologue (d) stage directions and directions for performance (e) music and (f) illustrations or descriptions of costumes, scenery, sets, props etc.

A non-competitive figure skating routine usually has a plot (in the form of a storyline), characters (in the form of skaters), directors (in the form of composers or choreographers), background music and it is usually performed in the backdrop of a stage or set. Therefore, except for the dialogue/monologue requirement, a figure skating routine fulfills all the characteristic elements of a dramatic work. There is an ambiguity over whether a dramatic work should have all the enlisted characteristic elements to qualify as a dramatic work or if fulfilment of even some of these elements is sufficient to warrant copyright protection.

Professor Paul Goldstein defines a dramatic work as ‘any work in which performed actions, speech, or incident-or all three-convey theme, thoughts or character to an audience’ (Goldstein P, 2007). Based on this definition, it seems that plot, characters, stage directions and directions for performance, illustrations or descriptions of costumes, scenery, sets and props are pre-requisites for a work to be categorized as a dramatic work. Therefore, dialogue/monologue is not an essential ingredient of a dramatic work though the legal definition differs from the industry’s view point. Irrespective of this, the Compendium is only a policy document which does not have the force of law. Therefore, it is likely that a figure skating routine can be protected as a dramatic work provided that it fulfills the originality and the fixation criteria of US Copyright law.

Having said this, even though there is no impediment for a figure skating routine to be categorized as a dramatic work, legal scholarship has largely focused on comparing it to choreographic works (Roessler V, 2016: 948). This is perhaps due to the very nature of ice skating which as a special discipline of figure skating is nothing but ballroom dancing on ice emphasizing graceful and entertaining movements. Therefore, due to the very nature of ‘ice-dance’ this makes its comparison to choreographic works inevitable.

As per the Compendium, there are six elements for a work to be a considered as a choreographic work. These are (a) rhythmic movement in a defined space (b) compositional arrangement (c) musical or textual accompaniment (d) dramatic content (e) presentation before an audience (f) execution by skilled performers. In a figure skating routine, there is always a rhythmic bodily movement in a sequential form by the skater. Secondly, there is always a compositional arrangement in the form of a sequence of related dance movements. Thirdly, the figure skating routine is always accompanied by background music. Fourthly, many contemporary figure skating routines are theme based and contain a dramatic content. Fifthly, a competitive figure skating routine is always performed before an audience as opposed to in a personal setting. Lastly, it is usually performed by a skilled performer. Therefore, a figure skating routine fulfills all the characteristic elements of a choreographic work even though the absence or presence of all these elements is not a prerequisite.

Even though aesthetic sports generally and figure skating specifically can be protected as dramatic works or choreographic works (provided it fulfills the originality and the fixation criteria) not all of them will be granted copyright protection. This is because the US Copyright Office does not register copyright claims in competitive events. On public policy considerations all competitive sports including aesthetic sports have been ruled out from the list of copyrightable works. Therefore, if a figure skating routine or a gymnastic feat or a synchronized swimming sequence is performed in an international sporting event such as Olympics, it will not be granted copyright protection. However, perhaps this does not preclude the protection of these sports if they are performed in a non-competitive environment say for instance at a circus or at an ice rink purely for entertainment purposes. This view is widely endorsed by legal commentators who have opined that aesthetic sports were a special species of sports which due to their inherent creativity were worthy of copyright protection mostly as choreographic works.

The above discussion makes it clear that even though courts in prominent common law jurisdictions have not explicitly determined the issue of copyrightability of aesthetic sports, precedents and statutory provisions support that they should be granted copyright protection. In India, precedents support their protection as dramatic works provided the fixation and the originality criteria are fulfilled. In the US, they can be protected as either dramatic or choreographic works depending upon their similarity to theatre or dance. However, the weight of authorities’ tilts towards protecting these sports as choreographic works provided they are performed in a non-competitive setting. Lastly, in the UK, these sports are likely to be protected as dramatic works due to their resemblance to choreographic works which are included within the definition of dramatic works.