Indoor Rock Climbing: The Nuts and Bolts of Route Theft and Potential Copyright
Source: https://flic.kr/p/eg5fCk
By Julie R. Tamerler*
Indoor rock climbing, once considered a niche sport, has now hit the mainstream; not only is climbing going to be included in the 2020 Olympics, but “[t]here were 414 commercial climbing gyms across the country at the end of 2016, up from 388 in 2015.”[1] What makes an indoor rock gym successful is “setting,” which is the arrangement of holds in a designated route to challenge a climber.[2] Route setters, or “setters,” do not just place a variety of plastic holds on a wall, they must plan their routes with an eye towards style, difficulty, and safety, and they must also consider how an individual will complete the climb.[3] Top setters “earn salaries of $70,000 or more, fly across the country to guest-set at other gyms, and work national and international competitions,” all while attracting business to their primary setting gym.[4] Route setters tend to leave their marks on the routes they create by giving them creative and memorable names.[5] Although setters enjoy a certain semblance of “ownership” of their climbs, there is currently nothing in place to prevent a route setter from a competing gym from recreating a climb by copying it exactly with its own holds.[6] Considering that it can cost millions of dollars to start a rock climbing gym, and that its only lure is uniquely set climbs, it can be truly detrimental to have another gym “steal” its climbing routes.[7]
The Architecture of Copyright
Copyright “protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture,” but it does not “protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.”[8] While copyright law applies to rock climbing holds themselves, there is no evidence of route setters copywriting the climbs they create.[9] Indoor rock climbing routes bring up the notorious “idea-expression dichotomy,” which provides that expressions may be subject to copyright, not ideas.[10]
An analogous issue arose in the sphere of commercial yoga.[11] A controversial yoga teacher, Bikram Choudhury, created his own style of Hatha Yoga (“Bikram Yoga”) utilizing “a particular arrangement of 26 ‘asanas’ (poses) and two breathing exercises, which he called the ‘Sequence.’”[12] The Sequence “was to be performed in its precise order… [for a period of] 90 minutes, and in a room heated to 105 degrees Fahrenheit.”[13] Choudhury “published and registered the [c]opyright in his book, Bikram’s Beginning Yoga Class, which included descriptions, photographs, and drawings of how to perform the Sequence.”[14] Choudhury found that other yoga studios were employing his Bikram method, and he filed a complaint in the Central District of California alleging that “defendants Evolation Yoga, LLC… infringed ‘Bikram's Copyrighted Works through substantial use of Bikram's Copyrighted Works in and as part of Defendants' offering of yoga classes.’"[15] The court held that Choudhury’s sequence could not be copyrighted because it consisted of a “system” and a “method,” making it an idea not subject to copyright rather than the particular expression of an idea, which would be subject to copyright.[16]
Stretching Copyright to Cover Climbs
Unlike a yoga sequence, routes may have a stronger application for protection under copyright law because they fit the definition of a “tangible medium of expression.”[17] Following the logic in the Bikram case, a route setter would not be able to copyright a specific movement required to complete a climb, such as a “heel hook,” because it consists of a method.[18] However, a route, specifically set with certain holds in a manner to utilize the “heel hook” movement, may be copyrighted because it is a tangible medium of expression; the fixed orientation of holds provides something veritable, like a painting.[19] Additionally, a rock climb can be copyrighted because it fits the definition of an artistic work as a wall covering design.[20] Rock climbing setting comprises an “art” and many describe it as an artistic endeavor in various contexts; it utilizes creativity, and an emphasis is placed on the route’s visually pleasing appearance.[21]
While the case for copyright is strong, a myriad of issues arise under the assumption that indoor rock climbing setting patterns can be copyrighted; all setting patterns utilize climbing holds from companies that have copyrighted these holds.[22] If a setter copyrights the climb they created, it limits the ability of other owners of the same copyrighted holds to use their own property as they see fit.[23] Additionally, courts would have to grapple with how creative a climb must be before it may be subject to copyright.[24] For example, a beginner climb may consist of a single type of hold arranged in a simple ladder formation that does not require much “skill” on the part of the setter.[25] Additionally, courts would have to explore the validity of a setter designing a climb to be as identical as possible to a “real” outdoor climb on the side of a “real” wall of rock that belongs to the public.[26] As it stands, it appears as if indoor rock climbing routes are subject to copyright, and it will be up to courts to further define the parameters of a set route’s artistic qualities.[27]
I predict that copyrighting climbs will not become a relevant legal issue for some time because climbing gyms on the whole are still experiencing nationwide growth with few gym closures.[28] However, it is important to note that today’s society has made “wellness” its own thriving industry, giving rise to a variety of boutique workouts such as indoor rock climbing, all of which must compete for market share.[29] Melanie Whelan, CEO of SoulCycle, a high end chain of indoor spinning studios, stated, “As we expand, we stay acutely aware of a potential pitfall: The performance of the fitness and wellness industries tends to be cyclical. That’s true for workouts, and it’s true for diets. This is a space where things may come and go, and trends may disappear entirely.”[30]
Currently, the indoor rock climbing gym is shifting from ownership by the archetypal beanie-wearing-Subaru-driving individual to ownership by franchised entities signing investment deals with private equity firms.[31] Because investors are pouring hundreds of millions of dollars in burgeoning climbing chains, it may only be a matter of time until a large chain attempts to copyright routes in an effort to gain a competitive advantage over similarly positioned gyms.[32] Courts will have to rely upon the expert testimony of professional setters to determine what styles of setting are unique enough to be copyrighted.[33]
The ability to enforce such a copyright is a different matter entirely; copying “involves a factual question whether the defendant actually used the plaintiff’s work in order to create his or her own work.”[34] The use of a copyrighted work is evidenced by “direct testimony… [or] through circumstantial evidence establishing… access to the plaintiff’s work… and probative similarities between the works.”[35] Additionally, “it must be proven that the plaintiff’s and defendant’s works share certain probative similarities that collectively help to prove that factual copying has occurred.”[36] It will be difficult for a court to establish that a setter used a copyrighted climb unless the setter copied the climb exactly absent direct proof that the copying occurred, such as an admission on the part of the defendant.[37] The issue of the existence of “probative” similarities would have to be litigated for every indoor rock climbing route copyright claim.[38] Engaging in mass copyright and protracted litigation may be an effective method of eliminating competition in an overly competitive market of indoor rock climbing gyms.[39]
* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2020, Villanova University Charles Widger School of Law
[1] See Joanne Kaufman, A Boom In Rock Climbing, Minus the Rocks, N.Y. Times (Mar. 15, 2017), https://www.nytimes.com/2017/03/15/business/smallbusiness/rock-climbing-gyms-bouldering-walls.html (discussing business of indoor rock climbing gyms).
[2] See Jenna Stadsvold, How to Set Climbing Routes: Pro Tips for Great Routes, Head Rush Technologies (Oct. 19, 2016), https://headrushtech.com/blogs/how-to-set-climbing-routes/ (discussing what makes a successful route).
[3] See Routesetting, Indoor Climbing, http://www.indoorclimbing.com/routesetting.html (last visited Sep. 24, 2018) (explaining characteristics of “good” and “bad” setting).
[4] See Brendan Borrell, How the World’s Most Difficult Bouldering Problems Get Made, Outside Online (Sept. 23, 2015), https://www.outsideonline.com/2017711/path-beta-flash-resistance-route-setters (discussing the careers of setters).
[5] See Kevin Corrigan, Unsent: How to Name a Climbing Route, Climbing (July 20, 2016), https://www.climbing.com/places/unsent-how-to-name-a-climbing-route/ (explaining climbing name conventions).
[6] See Andrew Tower, The Art of Development, Climbing (Jan. 15, 2014), https://www.climbing.com/people/art-of-development/ (discussing stolen climbs and the cost of starting a gym).
[8] See U.S. Copyright Office, What Does Copyright Protect, https://www.copyright.gov/help/faq/faq-protect.html (last visited Sept. 24, 2018) (stating what is subject to copyright).
[9] See Jason Stearns, Navigating Intellectual Property Law, Climbing Business Journal (July 25, 2016), http://www.climbingbusinessjournal.com/navigating-intellectual-property-law/ (discussing the copyright of rock climbing holds).
[10] See Edward Samuels, The Idea-Expression Dichotomy In Copyright Law, 56 Tenn. L. Rev. 321, 321-326 (1989) (elaborating on concept of idea expression).
[11] See Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1036 (9th Cir. 2015) (presenting issue of ability to copyright distinct series of poses within sport).
[12] See Thomas Huthwaite, Copyright Law Not Flexible Enough to Protect Bikram Yoga Sequence, Lexology (Oct. 15, 2015), https://www.lexology.com/library/detail.aspx?g=05d27527-2d85-40cd-9e87-eaae8b417143 (discussing court’s ruling).
[15] See Bikram's Yoga Coll. of India, Ltd. P'ship, 803 F.3d at 1036 (quoting from Bikram’s complaint).
[16] See id. at 1041 (“By claiming copyright protection for the Sequence as a compilation, Choudhury misconstrues the scope of copyright protection for compilations. As we have explained, the Sequence is an idea, process, or system; therefore, it is not eligible for copyright protection. That the Sequence may possess many constituent parts does not transform it into a proper subject of copyright protection. Virtually any process or system could be dissected in a similar fashion.”).
[17] See Stearns, supra note 9 (discussing copyright and rock climbing holds)
[18] See Julie Ellison, Climbing Techniques: How to Heel Hook, Climbing (Apr. 14, 2016), https://www.climbing.com/skills/climbing-techniques-how-to-heel-hook/ (discussing a heel hook movement).
[20] See U.S. Copyright Office, Copyright Registration for Pictorial, Graphic, and Sculptural Works, https://www.copyright.gov/circs/circ40.pdf (providing a list of what qualifies as an artistic work).
[21] See Nile Cappello, The Art of Routesetting: Indoor Rock Climbing with Steve Gaspar, Crixio (last visited Sep. 24, 2018),https://crixeo.com/routesetting-rock-climbing/ (discussing artistry associated with setting).
[22] See Samuels, supra note 10 (explaining basics of copyright protection)
[23] See id. (discussing copyright and property)
[24] See U.S. Copyright Office, supra note 20 (listing what works are subject to copyright)
[25] See Michael Tousignant, Low Grades, High Expectations!, Awesome Route Setting, (Aug. 18, 2017) http://awesomeroutesetting.com/category/tips/ (explaining beginner style climbs).
[26] See Public Domain Day — Frequently Asked Questions, Duke Law (last visited Oct. 15, 2018), https://law.duke.edu/cspd/publicdomainday/2012/faqs/ (explaining that public domain “is the realm of material — ideas, images, sounds, discoveries, facts, texts — that is unprotected by intellectual property rights and free for all to use or build upon. It includes our collective cultural and scientific heritage, and the raw materials for future expression, research, democratic dialogue and education… [Public works] are free of centralized control.” An outdoor rock face that is not privately owned is likewise free of centralized control, making it fall under the public domain).
[27] See U.S. Copyright Office, supra note 20 (explaining requirements for copywriting “Works of the Visual Arts”).
[28] See Mike Helt et al., Gyms and Trends of 2017, Climbing Business Journal (Jan. 22, 2018), http://www.climbingbusinessjournal.com/gyms-and-trends-of-2017/ (explaining the growth of the climbing gym industry and noting that there were only two gym closures in 2017).
[29] See Cathaleen Chen, Boutique Fitness Boom Attracts Wide Range of Investors, TheStreet (Mar. 24, 2018), https://www.thestreet.com/story/14533406/1/private-equity-gym-operators-hunt-for-more-fitness-investments.html (discussing the economic rise of “boutique fitness”).
[30] See Melanie Whelan, SoulCycle’s CEO on Sustaining Growth In a Faddish Industry, Harvard Business Review (Jul. – Aug. 2017), https://hbr.org/2017/07/soulcycles-ceo-on-sustaining-growth-in-a-faddish-industry (discussing SoulCycle’s expansion in a competitive fitness market).
[31] See Gregory Thomas, Climbing Gyms Are the Next Health Clubs, Climbing (Jul. 20, 2016), https://www.outsideonline.com/2099476/climbing-gyms-are-next-health-clubs (discussing Brooklyn Boulders investment deal with New York private equity firm North Castle Partners for $48,750,000).
[32] See id. (discussing large-scale investment in indoor rock climbing chains).
[33] See Amanda Ashley, “Skate-Style” Route-Setting: How World Cup Climbing Affects Your Local Gym, Climbing (Jan. 10, 2018), https://www.climbing.com/news/skate-style-route-setting-how-world-cup-climbing-affects-your-local-gym/ (explaining the rise of “skate-style” setting, which utilizes large voluminous holds to facilitate dynamic movements.).
[34] See Jason E. Sloan, An Overview of the Elements of a Copyright Infringement Cause of Action - Part I: Introduction and Copying, American Bar Association (last visited Oct. 15, 2018), https://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/elements_of_a_copyright.html (discussing proving copyright infringement).
[36] See id.
[37] See id. (explaining burden of proof).
[39] See Mary Hanbury, Peloton Is Accusing Flywheel of Copying its Hugely Popular at-home Fitness Bike, Business Insider (Sep. 13, 2018), https://www.businessinsider.com/peloton-sues-flywheel-over-home-fitness-bike-2018-9 (discussing a similar strategy currently utilized by Peloton, a company that produces indoor cycling bicycle that live-streams fitness classes, which is suing Flywheel, an indoor cycling company that has produced a similar indoor cycling bicycle that also live-streams fitness classes).
