I got reader feedback on my book-length manuscript The Literate Practices of Big-Time College Sports. The next few months will fly by with the flurry of revision. The post below appeared in the initial manuscript of my book—lodged in the middle of the final chapter. Per reader feedback, my final chapter will take on a different form and these pages are getting tossed out.
But not for good.
I offer them here and plan to return to them more in-depth soon. The issue(s) of intellectual property animate much of the work of college writing teachers, scholars, and administrators. Copyright, specifically, is a gnarled issue and forces us to ask question that strike to the heart of our work with writers and writing: who owns writing, what is it, and how it is accomplished?
I extend these questions when thinking about scripted sports plays. Scripted sports plays are the language of big-time college sports—yet who owns these plays?
As I began formulating this book, I started tracking down permissions to use these plays. The Auburn playbook has the name of then-defensive line coach, Don Dunn, written across the title page. At the time of my writing this conclusion, Dunn is coaching at Western Kentucky. But who owns the permissions to these plays: Auburn or Dunn? The employer or the employee? I started with Auburn. I called a special collections librarian and archivist. I wanted to start with librarians and not someone in the athletic department. I didn’t think I would fare well to cold call the athletics department and ask to reprint some plays from their football playbook. Instead, I wanted to start with an academic, someone who understood I was writing an academic book not an ESPN exposé on the ills of college sports. My query stumped the archivist. He passed on the name and number of Auburn’s legal counsel. I left a voicemail and received a call back several hours later. Legal counsel said Auburn doesn’t have any claim to the playbook. The playbook was over ten years old, written by a former coach (Dunn) for a former head coach (Tommy Tubberville, now at Cincinnati).
I then called an administrative assistant with the athletics department at Western Kentucky. She referred me to the director of media relations for football. A voice mail and email later and I touched base with the director. We spoke over the phone, exchanged tweets, and I tried to explain my work. Eventually, after I emailed a portion of my book, I received an email from the director saying Dunn okayed my use of the play.
If the object of study of the literate practices of big-time college sports is to be the scripted play, then moving forward writing researchers need to stay up-to-date with intellectual property developments. Copyright law, patents, and trademarks have been extended to elements of bodily arts and some elements of competitive sports. U.S. copyright law extends to eight established categories, one of which is “pantomimes or choreographic works.” The choreographer George Balanchine filed suit over the dissemination of images of his choreography in The Nutcracker. In Horgan v. MacMillan (1986), the Second Circuit court ruled in favor of Balanchine vis-à-vis Horgan (the executrix of Balanchine’s estate), setting an important precedent for future copyright extension to other choreographed works. But the court has yet to render a decision on scripted sports’ plays. The majority of law journals I read, offer compelling arguments for extending copyright protection to scripted plays. Brent C. Moberg (2004), writing in the Marquette Sports Law Review, starts with the Framers of the U.S. Constitution who granted Congress the power to enact copyright legislation: “Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (U.S. Constitution Article I, §8, cl. 8). Supreme Court and federal circuit courts cases clarified opaque phrases in the Constitution, such as “useful Arts” and “Discoveries.” The U.S. copyright laws of 1909 and 1976 further advanced copyright understandings. The 1976 law, in brief, reads: “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” (17 U.S.C. § 102(a)). The law then states the eight categories of authorship, which includes number 4: “pantomimes and choreographic works.”
When legal scholars argue for extending copyright protection to scripted sports plays, they often start by parsing out this definition. For example, Moberg starts with the concept of originality. Moberg argues the coach must make many different rhetorical choices when preparing plays to run in a game: “the coach must decide what plays should be included, the personnel packages that will be utilized for each play, and the order in which they will be organized into the script” (542). Additionally, the coach “remains creative” during the game by “making adaptations to the script and other improvisations” (542). Moberg intentionally uses the noun creative to connect with a ruling in Feist Publications, Inc. v. Rural Telephone Service Co (1991) in which the court determined originality should entail some degree of creativity. Returning to U.S. copyright law, Moberg argues scripted plays are also “fixed in any tangible medium of expression.” Based on meeting these two qualifications, Moberg, like other legal scholars writing before him (see, Kieff, Kramer, and Kunstadt, 2008; Kukkonen, III, 1998), argues for extending copyright protection to scripted plays.
Offering a more nuanced reading of the issue, Proloy K. Das (2000), writing in the Indiana Law Journal, brings up the “hurdles of the derivative works rule and the doctrine of merger” (1094). The merger doctrine holds that if there is only a few ways to express an idea, then the work is not copyrightable. For example, there are only a few ways to kick a soccer ball with one’s foot or throw a baseball with one’s hands: thus, these actions are not copyrightable. The derivative works rule connects with the importance of originality in the 1976 U.S. copyright law. Works deriving from several previous works do not illustrate originality and thus fail to receive copyright. Das also brings in an economic perspective and argues a coach is “not producing a product or availing himself of the standards of the marketplace. He operates within a confined league against a fixed number of competitors battling for wins and losses, not profits and sales” (1076). While I disagree with the notion that coaches are only chasing wins and losses and not dollar signs, Das’s point is well-taken that copyright law would be extended as a competitive balance to marketplace forces.
My point here is not to argue for or against the extension of copyright to scripted basketball and football plays. Instead, I take this brief detour to forecast the future of research on college sports literacy. Within composition and rhetoric, intellectual property, under which is included copyright, free use, and open access among other issues, is at the fore of our research and teaching. As publishers and university systems test the waters of open access textbooks and writers leverage various digital resources to construct multimodal projects, the field of composition and rhetoric is offering guidelines for how to conduct research ethically within this swiftly shifting tide. When I helped revise the CCCC Guidelines for the Ethical Conduct of Research in Composition Studies (2015), we spent a great deal of time thinking about the ethics of digital archive research and how to populate digital archives in a way that attends to “ethical consideration for all cultural stakeholders involved.”
The need to establish a precedent regarding scripted plays is not critical for what I am offering in this conclusion. Instead, further research in this area will be beset with similar challenges. Scripted plays exist in a documentary purgatory: they are at the same time floating through open access websites and tightly tethered to a coach. This paradox played out during my data collection. An example: I was having lunch with Faulkner, the head coach of the men’s basketball team I studied in chapter three. We were chatting about the nature of plays and touching on issues of authorship and the cloak of secrecy some coaches toss over their plays. Faulkner dismissed the idea of secrecy: “It’s not Xs and Os,” he said in the tone of one who provides this quote often, “it’s Jimmys and Joes.” In other words, if Faulkner were to get his hands on Duke’s playbook—a playbook used by one of the most historically successful Division I men’s basketball programs—he wouldn’t be able to replicate Duke’s success at UNG. Even knowing the nuances and broad strokes of the team’s offensive and defensive schemes and the specific plays Duke head coach Mike Krzyzewski used to coach his team to five national championships and a 79% winning percentage would not necessary mean Faulkner now has five national championships in his future. Faulkner would need, more than anything, the players Krzyzewski recruits. Faulkner’s quote not only raises curious lines of thinking regarding the importance of audience (i.e., the players) in the enactment of text but, for this discussion, illustrates one itineration of how scripted plays are valued (or not) within college basketball. Certainly, Faulkner’s quote does not stand for the entirety of college basketball coaches, but I have yet to see a basketball team cloak their plays in a level of secrecy anywhere near to that of college football; I have yet to see placards with images and numbers and dummy signals furiously gesticulated from the sidelines during a basketball game like I see in almost every football game. I have yet to see basketball assistant coaches hold blankets up high in hopes of obstructing the view of the opposing team while the head coach flashes signals. But such a practice is common in college football, and Clemson stormed their way to the national championship game in 2016 with such a sideline practice.
The Dunn example I started with lands at the other end of this paradox. example at the other end of this paradox. Even though my reading of the current legal work on scripted plays and copyright suggests Dunn cannot claim legal ownership of Cov. 4 Play Action, I felt I had an ethical obligation to seek his permission. And when I talked with the director of football operations at Western Kentucky, he gave me the sense that Dunn would believe he had legal claim to his plays.
Faulkner seemed to operate from the position of not holding legal claim to his plays. Enlarging these two narratives into a cumulative statement, it appears football and basketball approach the ownership of text much differently. As a writing researcher, I am committed to the CCCC Guidelines and am working from principles of ethics in addition to and sometimes above issues of the law. Also me to explain myself as that last sentence is painted with vigilante strokes. The guiding statement released by my field states I should seek permission from the author—whoever that may be—to use scripted plays in my work; legally, under existing copyright law, I do not have to.
While it is helpful to understand how the courts view scripted plays, I do wonder if our ethical obligation is to treat the ownership of scripted plays as they are treated by members within their community of practice. Additional research focused on scripted plays would do well to begin by learning how plays are understood and treated as a text within their community of practice.
Are they secretly scurried away or openly disseminated?
Will coaches share their plays and walk researcher through how plays are taught and enacted?
Or are coaches hesitant to allowing researchers this access out of fear that the secret moves therein, designed to trick the opponent, would become impotent if others saw them?