Remember that for a work to be eligible for copyright protection it must be an (1) original work (2) of authorship (3) fixed in a tangible medium (4) of expression. There are a number of creative arenas in which copyright--whether due to the expense of a lawsuit, the requirements of the Copyright Act, or the nature of an industry--is simply a non-factor.
In 2010, Kal Raustiala and Chris Sprigman were featured on the Freakonomics blog in a set of guest posts about these industries that operate outside of copyright law. In class, I mentioned that NFL plays are not likely a viable option for copyright protection and enforcement. If you are interested in exploring these excellent posts you can find them here: football plays, the Korean taco, fashion, and stand-up comedy.
Also take a look at the 2015 case of Bikrams Yoga College of India L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (2015), which I've embedded below. In the case, the 9th Circuit discusses the idea/expression dichotomy at length. A close look at the idea/expression dichotomy is appropriate at this point in our case book. We have just finished learning to apply the abstractions test to films, television shows, and books. Recall the upside-down triangle with ideas at the top, and very narrow expressions at the bottom. We filter the ideas out of the comparison between two works not simply because they are too broad, but because they are not protected by copyright. Thus, the abstractions test is derived from the Copyright Act's limitation on protection only to those elements which constitute discernible expressions.
In Bikrams, the 9th Circuit applies the idea/expression dichotomy to "a sequence of twenty-six asanas and two breathing exercises, arranged in a particular order, which he calls the Sequence." The 9th Circuit indicates that while photographs of the poses and the words describing the Sequence are protectable expressions, the Sequence itself is a mere idea. Therefore, because the Sequence does not even meet the basic requirements of a copyright-protectable work of authorship, we cannot take the next step of classifying the work (e.g. choreography or compilation):
The Sequence is not copyrightable as a choreographic work for the same reason that it is not copyrightable as a compilation: it is an idea, process, or system to which copyright protection may “[i]n no case” extend. 17 U.S.C. § 102(b). We recognize that the Sequence may involve “static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.” Compendium II, § 450.01. So too would a method to churn butter or drill for oil. That is no accident: “successions of bodily movement” often serve basic functional purposes. Such movements do not become copyrightable as “choreographic works” when they are part and parcel of a process. Even if the Sequence could fit within some colloquial definitions of dance or choreography, it remains a process ineligible for copyright protection.
What do you think? What is the difference between The Nutcracker ballet and the Sequence? Based on the quote from the case above, do you think the Profs. Raustiala and Springman's position would change regarding the copyright eligibility of football plays?