Perspective

Survival of the Fittest | Fitness Intellectual Property

Back to all articles

The fitness industry is a billion dollar industry.  Fitness intellectual property pumps through its veins, making fitness a very lucrative business for savvy traders who tightly control and carefully manage their intellectual property.

At its most extreme and contentious, a trader may seek to own and control precise exercise moves.

Methods & Moves – Patents

Lawyers have engaged in the interesting mental exercise of whether competitive sports methods or sports training techniques are patentable.  (Fosbury Flop – Dick Fosbury’s method of clearing the high jump bar – See Robert M. Kunstadt, F. Scott Kieff, and Robert G. Kramer, “Are Sports Moves Next in IP Law?” National Law Journal, May 20, 1996 and see Derek Bambauer – “Legal Responses to the Challenges of Sports Patents” Harvard Journal of Law & Technology Volume 18, Number 2 Spring 2005)

Notwithstanding the interesting intellectual analysis, sporting movements have not proved to be huge in the area of patents.  No doubt this is due to the patent requirements that the technology is a truly new and innovative way to move or perform an exercise or that (as a matter of public policy) that the innovation is patentable subject matter.

Moves – Copyright

Similarly, protecting moves alone under copyright is difficult as a matter of public policy.

The U.S. Copyright Office on 18 July 2012 issued a policy document (see U.S. Copyright Policy ) that “functional physical movements such as sports movements, exercises, and other ordinary motor activities alone” are not works of authorship protected under U.S. copyright law.

Nevertheless, in 2015 hot yoga celebrity Bikram Choudhury unsuccessfully sought to claim copyright in a sequence of yoga poses which are performed in stiflingly hot yoga studios. (see Hot Yoga Copyright ).  This heated dispute is controversial because the poses have been in the public domain for thousands of years.  Perhaps an example of flexing well-funded muscle rather than a cause of action based on sound copyright principles.

Sporting events have been considered in a copyright context under EU law by the The Court of Justice of the European Union (ECJ) ruling in Football Association Premier League Ltd v QC Leisure [2012] FSR 1 (see Premier League v QC Leisure )

The Court’s judgment relates to questions regarding free movement of goods and services; exhaustion of rights; and copyright infringement.  A fundamental outcome of the copyright issues in the case is that sporting events, as such, do not qualify as works under EU copyright law.

Strategic bundle of IP

The true commercial nature of intellectual property, at least in connection with fitness instruction and methods, is not so much in the individual moves or components of the workout, but rather as a strategically managed bundle of intellectual property rights with trade marks, copyright and licensing having critical roles.

Gym or fitness brands such as Golds, Les Mills (Body Pump, Body Combat & RPM), SoulCycle, Zumba and fast growing F45 continue to draw the masses into the fitness temples.

The intellectual property comprises brand, and in many instances carefully selected and licensed music (either original licensed music or cover versions produced under license).  Routines are carefully choreographed into a standardised class, workouts are filmed, instructors are well trained and details are kept secret and a new package is released with fanfare and precise timing.

These bundled packages reflect tight intellectual property management controlled through formal licence arrangements, sometimes in the form of a franchise.

However, in a relatively short space of time, fitness methodology CrossFit has changed the game with an interesting mixture of tightly controlled and free to view online content.

Greg Glassman, CEO and CrossFit founder, defines this fitness regimen as “constantly varied, functional movements performed at relatively high intensity.”

This exercise success story has a low barrier to entry and a decentralised approach.  Trainers must pay to become certified as a CrossFit trainer.  Gym or “box” owners pay an annual licence fee to become an “affiliate” and to use the CrossFit trade mark.  Otherwise, they are free to run their box as they wish.

Despite this free market model, intellectual property plays an enormous role in creating an enviable CrossFit eco-system.

CrossFit is a sophisticated content producer with a video production operation providing a broad range of videos including methodology, documentaries, or events and publishes these via CrossFit.com.

CrossFit also operates The CrossFit Games, the world’s largest sports event (by participation) to find “the fittest on earth”.  Many thousands of athletes around the world participate in CrossFit Open and Regional events in the lead up to the finale, The CrossFit Games.  Further, there are commercial deals with Reebok and Rogue Fitness, which supply the eco-system.

The CrossFit trade mark has serious mojo.  Consumers pay fees (which can often dwarf those of regular gym membership) to work out in deliberately Spartan premises.  This is so, even though CrossFit provides its workouts and methodology online for free.

Although intellectual property owners would naturally want to protect every move and should seek to maximise exploitation of their intellectual property, a carefully and strategically managed entire package can create a very valuable brand and disrupt an industry.