As is the case with many questions of legality, the typical answer to each of the above questions is: “it depends”. Section 5 of Canada’s (the “Act”) stipulates that copyright persists in “every original literary, dramatic, musical and artistic work”. Dramatic work is defined as “any piece of recitation, choreographic work or mime, the scenic arrangement or acting form”. Arguably, some sports moves could be characterized as a choreographic work. For example, although the World Wrestling Federation has not claimed copyright protection over its wrestling matches, a reported last year suggests that the shows are in fact choreographed.

In 1991, in the case of FWS Joint Sports Claimants v Canada (Copyright Board)��(“FWS Joint Sports”)��1], the Federal Court of Appeal had to decide whether a decision by the Copyright Board to deny copyright over a football play was valid. The FWS argued that copyright protection should persist, however, the Board was of the view that, unlike dance, a sporting event is for the most part a random series of events. The Federal Court of Appeal agreed with the Board. The Court stated that a mere spectacle is not sufficient to attract copyright protection because it is inconsistent with the concept of choreography: “what transpires on the field is usually not what is planned, but something that is totally unpredictable.” The Court elaborated by explaining that ballet choreography is copyrightable, stating that "[n]o one bets on the outcome of a performance of Swan Lake", as the choreography is set and the performance is highly predictable. In the same decision, the Court also held that playbooks or game plans could be protected by copyright. Essentially, the decision suggests that scripted moves are protected under the Act. However, in another interesting case, a U.S. court determined that the by yoga guru Bikram Choudhury were not copyrightable. These cases cause and ultimately raise the following question: What exactly amounts to ‘choreography’ under the Act?

Looking at the array of , it is apparent that some are more likely to attract copyright protection than others. Beach volleyball, wheelchair Rugby or water polo are unlikely to find protection from the Act even if a team's coaches and athletes meticulously scripted and recorded some of the main moves for the Games since the presence of direct opponents would inject significant unpredictability to matches. Copyrightability aside, this unpredictability is what makes sports so exciting, it keeps fans glued to the TV screen and live observers gripping the edge of their seats.

Other sports are more choreographed and give the athlete greater control over his or her moves. Arguably, equestrian and gymnastics involve more choreography than a scripted event like wrestling. Therefore, Canadian gymnast and equestrian  may technically protect their routine under the Act. However, aside from being a copyrightable subject matter, the work in question also has to be ‘original’. In Canada, to qualify as being ‘original’, the work must have been independently created by the author, who had to use some skills and judgment when executing the work, as set out in in . It is unlikely that Hugh Smith and Jessica Phoenix invented the moves in their routine. Rather, they likely borrowed and built on proven moves used by other athletes, who themselves borrowed from their predecessors, and so on.

Given the strict criteria a work has to meet to qualify as a copyrightable work under the Act, it is unlikely that any of the Games' athletes will try to classify their glorious sports moves as intellectual property at this juncture. Hopefully, in keeping with the Games' motto - 'United We Play', all Pan Am and Parapan Am battles will be fought on the fields, pools and tracks rather than in the court room.

Gosia Piasecka is an IPilogue Editor and a JD candidate at Thompson Rivers University Faculty of Law.

[1] 1991 CarswellNat 157, [1992] 1 F.C. 487.

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‘Ambush marketing’ is a term coined in the marketing world to describe advertising that creates an association between a major sporting event and a particular product, service or business – without the event organizers being able to benefit from the usual lucrative sponsorship agreement. Traditional IP laws have not been much use in dealing with the more sophisticated forms of ambush marketing. Trademark law, for example, would prevent a company from using the trademarks of a major sporting event without consent (in the form of a sponsorship agreement), but clever ambushers do not need to use these trademarks to create associations with a high profile event. For example, when Germany hosted the FIFA World Cup in 2006, Air Emirates was the official airline of the event. Its competitor, Lufthansa, painted the pattern of soccer balls on the nose cones of its airplanes. The association was created without use of anyone’s trademarks. There are many other .

Event organizers – keen to extract the maximum in sponsorship revenues from sponsors – have long struggled against ambush marketing. There are at least two main types of ambush marketing, and a third is also gaining recognition. These are intrusion, invasion and association.

Intrusion and invasion occur when the trademarks of non-sponsors enter the spaces dedicated to the major sporting event, preserving spatial exclusivity for event sponsors. Intrusion occurs when branded items enter event venues on the person (or vehicles) of attendees. Invasion involves a more deliberate plan – perhaps by a group of attendees and perhaps organized by a non-sponsor company. A notorious example is that of the to a FIFA event in South Africa in 2010. Intrusion and invasion have long been addressed through ticket clauses that prevent ticket holders from wearing clothing bearing the visible trademarks of non-sponsors, and from bringing into the venue products (such as bottled water or soft drinks) bearing the trademarks of non-sponsors. The Pan Am/Parapan Am Games 2015 are no exception. Ticket specifically prohibit ambush marketing in clause 11(c) (“whether by invasion, intrusion or otherwise”), There are also restrictions on bringing food or drink into the venue. While this is in part to push attendees to purchase such items from on-site vendors, it also limits the possibility of non-sponsor items from entering TV camera sight planes. There are also separate restrictions imposed by organizers on athletes in terms of how visible logos can be on sporting wear and other equipment they use. Consistent with our wired age, the of the Pan Am/Parapan Am Games 2015 website also prohibit use of the website or any official social media sites for ambush marketing.

Ambush marketing by association is harder to deal with, particularly where it does not infringe existing IP laws. Major sporting event organizers (the IOC, FIFA, etc) have begun to pressure countries that bid for their events to put in place legislation to protect not only against ambush marketing by association but also ambush marketing by intrusion. Some countries have introduced event-specific laws; others, such as New Zealand, have introduced that can be applied to any event designated as a major event. These laws make it illegal to create an “association” with an event. Olympic-related legislation has tended to do this by, among other things, creating lists of words that, if used by advertisers, are considered problematic. In unitary states, such laws have also provided protection against ambush marketing by intrusion. Whereas previously event organizers could only control private spaces associated with the events through ticket clauses and other contractual agreements, such laws controversially restrict the use of non-sponsor trademarks and advertising in wide swaths of public space, including airports, public transit lines, public parks and streets near event venues.

Canada enacted its first anti-ambush marketing law for the 2010 Vancouver Winter Games. The commitment to do so was made to the IOC in the bid documents. The (OPMA) created a special status and special protection for Olympic and Paralympic marks. It also created a separate recourse against ambush marketing by association. Because Canada is a federal state, and the provinces have jurisdiction over property and civil rights, the law could not address ambush marketing by intrusion into the spaces around Olympic venues. This was done by Vancouver City by-laws, a number of which were by the B.C. Civil Liberties Association. As with other legislation of this kind, the statute created lists of words, the use of which were considered suggestive of ambush marketing. These included common words such as: Vancouver, twenty-ten, 2010, Whistler, gold, silver, bronze, winter, and so on.

Legislating against ambush marketing is of questionable value. Action taken by event organizers against small or local businesses (or women wearing orange dresses) can create a sense of public outrage that is perhaps more harmful to the goodwill associated with the event than ambush marketing itself. Further, as Canada’s bold Olympic ambushers illustrated in 2010, associations can be created by encouraging the public to celebrate “Canada”, and it is difficult to see how a major sporting event can claim any form of monopoly over displays of national pride. Anti-ambush marketing legislation may also raise interesting freedom of expression issues so far as it relates to small and local business making reference in their advertising to events taking place in their communities. Of course, small businesses generally do not have the resources to fight legal battles over marketing; once they receive a cease and desist letter from event organizers, they tend to cease and desist. High profile competitors of event sponsors, on the other hand, have legal departments at their service to vet their advertising campaigns to ensure they fit comfortably within legislative loopholes. The effectiveness of such laws is open to question; their overall impact may even be negative.

In Toronto’s bid to host the Pan Am/Parapan Am Games it promised to ask the federal government to extend the application of the OPMA to the Pan Am/Parapan Am Games (see , page 189). In other words, as with other major events, the promise of legislation to address ambush marketing was made a part of the bid. In this case, the extension has not materialised. Instead, the organizers have contented themselves with a series of official marks (a special category of trademarks available to “public authorities” in Canada). As far as local businesses are concerned, the organizing committee has issued on how to reference (or not reference) the games.

The approach seems far lighter than recent examples, although the Pan Am/Parapan Am Games are lower profile than the Olympics or FIFA events. But perhaps it is evidence of an important lesson learned: that there are limits to the use of law and legal institutions to address problems such as ambush marketing.

is the Canada Research Chair in Information Law at the University of Ottawa. Some of her writing on ambush marketing and the law can be found , and .

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