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Copyright and Football: A Guest Post

DESCRIPTIONSuzy Allman for The New York Times

Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a professor at the University of Virginia Law School, are experts in counterfeiting and intellectual property. They have been guest-blogging for us about copyright issues. Today, they write about copyrighting and football.
Innovation and the I-Bone: What Football Can Teach Us About Creativity
By Kal Raustiala and Chris Sprigman

The theory behind copyright is simple – if we allow anyone to copy a good new idea, then no one will come up with the next one.? The theory makes perfect sense – in theory.? In previous posts, however, we have described how fashion designers, chefs, comedians and pornographers all continue to create, even though others are free to copy their fashion designs, recipes, jokes, and . . . images.? In this post, we’ll take a look at something different: football.
You may not think of football as a creative industry, but it’s actually the most consistently creative sport.? Once football embraced the forward pass, plays and formations changed rapidly. The result has been a continuous wave of innovation.? Should football plays be protected against copying? And what can we learn from the fact that copying hasn’t slowed down innovation on the gridiron?
First, a little history. When football started, it was a running game, an endless loop of three yards and a cloud of dust.? But in the 1905 college season, 18 players were killed and more than 150 badly injured.? After viewing a photo of a mutilated player, President Theodore Roosevelt demanded changes in the sport.? The result was the forward pass, which was thought to be less dangerous to players than the run.
Some doubted that the forward pass would ever count for much.? The New York Times opined that “There has been no team that has proved that the forward pass is anything but a doubtful, dangerous play to be used only in the last extremity.”
Yet passing changed football – size mattered less, speed and smarts much more – and added a range of previously unimaginable complexities to the offense.? Here are some recent examples of innovation on the field:

The initial reaction to Leach’s spread offense, as ever, was contempt.? The second reaction, just as inevitably, was appropriation.? Teams on both the college and pro levels adopted various forms of the spread – Rich Rodriguez developed a “spread-option” offense at West Virginia and Michigan, and in 2007, the New England Patriots used the spread and compiled a perfect 16-0 season.
So what does this all mean?? There has been a lot of innovation in football, in both offensive and defensive systems.? But there has been virtually no attempt to copyright or patent these innovations.? There are some serious doctrinal hurdles, but it’s not impossible to imagine the law providing protection.
Indeed, in the 1980s, James R. Smith applied for a copyright on his “I-bone” offensive formation (he claimed that the formation was equivalent to choreography and therefore copyrightable).? We can find no record showing that the U.S. Copyright Office granted registration (although they did grant a copyright to a book describing the I-bone).? Patent protection extends to new and useful “systems,” and a well-developed football offense might be characterized this way.? It might also be characterized as a “method of doing business” – a category of inventions which are also patentable (with some restrictions) under U.S. law.? So intellectual property law might conceivably step in, but it never has.
So why do football coaches continue to innovate, even when they know that their rivals will study their innovations, take them and use them?? That is, why do football coaches engage in intellectual production without intellectual property?
First, the stories of football innovation often involve coaches that are struggling to find a way to win with players of inferior talent.? Effective innovation may be the only way to level the playing field, at least temporarily.
Second, football coaches are incredibly short-term thinkers.? The rewards of winning are immense – one Super Bowl victory makes a career – and this means that they are focused on winning now, and less deterred by the prospect of losing their edge over the long term.? An innovation that gives any advantage – even a temporary one – is worth exploring.
Third, even though there are no protections against copying in the long term, there are practical barriers that prevent immediate copying and ensure a short period during which the innovator can’t be imitated.? Innovative plays and formations can be copied relatively quickly. What’s far less quick is the process of rebuilding a team to take advantage of the innovation.? Employing any complex formation requires players to be retrained.? Often, it requires a different type of player too – the spread offense favors smaller, speedier offensive players and places less emphasis on enormous offensive linemen.
Economists refer to this as first-mover advantage – the period of de facto exclusivity that innovators often enjoy due to the practical difficulties of copying.? If the first-mover advantage is substantial enough, it might be a sufficient incentive to engage in innovation, even without patent or copyright.? In football, where winning now is the priority, first mover advantage can mean a lot.
Finally, the story of innovation in football is tied to a much deeper debate in the economics of innovation.? Economists today disagree about the conditions most conducive to innovation.? Some, following the ideas of Joseph Schumpeter, maintain that innovation requires shelter from competition – the firm in a competitive market is hard-pressed to focus on anything but the short-term, and because profits are limited by competition, may lack the resources to innovate.? Other scholars, following the lead of Nobel laureate Kenneth Arrow, argue that innovation is best fostered by sharp competition – firms struggling for any advantage over their rivals are forced to innovate or die.? This divergence in views has hardened into a Schumpeterian vs. Arrovian standoff – and the state of the evidence does not allow us to fully understand yet which view is right.
Intellectual property law, however, is essentially Schumpeterian. The theory of patent and copyright is that by sheltering innovators from competition – that is, by prohibiting copying of the innovation – we encourage innovation.? But perhaps the Arrovians are right.? Football, for example, illustrates innovation occurring in the midst of cut-throat competition.? And football doesn’t stand alone.? Some of the other creative industries we’ve described, such as fashion and food, look like Arrovian innovators as well.
The lesson here, in our view, is that innovation can thrive under a wide variety of conditions – from cutthroat competition all the way to very strong IP – depending on the particular logic of innovation in an industry.? Football and pharmaceuticals are as different as music is from poetry, or computer software from architecture, or academic research from motion pictures.? All of these are creative endeavors, all of them involve innovation, but the ways in which these creators innovate, and the legal rules that best fit innovation in these fields, are all very different. Our copyright and patent laws treat all the industries they reach virtually the same.? Yet all innovation cultures are different.