intellectual-property
Is it illegal to &quot;sell&quot; a pro golfer&#39;s swing?
<p>Say I use three cameramen to record a pro golfer's swing at a public event in order to subsequently digitize the path of the swing in 3-space.  Say I then program a baton (like a Wii remote or a smart phone taped to a golf club) to vibrate and/or beep when the device doesn't move through space along the same path and at the same speed as the original golf swing.  (In other words, the device lets you "feel" what the pro's swing is really like:  as you swing, the more the device will vibrate and beep the more you deviate from the programmed swing.  On the other hand, the closer you duplicate the speed and position of the original swing, the quieter the device remains, so you can try to find the preferred "groove".)</p>

<p>Would it be legal to sell the program and data, without any consideration going to the golfer whose swing is being duplicated?</p>

<p>Say the software is embedded with the necessary hardware in a golf club handle that could be attached to any club.</p>

<p>Say the software or device being sold didn't replicate a particular golfer, but instead let you download "path" files from servers, so that if someone posted a "Tiger Woods 5-iron" file or a "Bubba Watson 3-wood" file, you could load that "training" file into the device.  Would that be like song or movie players, where the device is legal, but the file being downloaded or played might not be?</p>

<p>From the patent angle, you will need to make sure that you are not infringing on a patented swing. That should be pretty easy at present because golfers are not patenting their swings. <a href="https://law.stackexchange.com/a/4060/10">What Mowzer says</a> about public disclosure probably has something to do with this. However, at least one golfer patented a swing:</p>

<p><a href="https://i.stack.imgur.com/f5pXU.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/f5pXU.jpg" alt="Image from swing patent"></a></p>

<p>I would be more concerned with the right of publicity of the golfers whose swings you are selling. You can't use someone's name for commercial advantage without their permission. (<em>I will leave this thought for another day: Can analysis of a golfer's swing, without reference to their name, be appropriation of their identity if the swing is so unique?</em>)</p>

<p>I am just going to rip this straight out of <a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=Iqv1AxuVMGKlaTI55kSB6Tl5i%20F7wqb7HIl4aMnEehEpv7/i7Bb6nSHG9mLQDSjn2hVVFN32qSpK2GLiwG%20nJ4hvPk876oDb/xbKo7sv9Wqe%20HBRauAxwvkRfPzX81xn" rel="nofollow noreferrer">C.B.C. Distribution v. Major League Baseball, 443 F.Supp.2d 1077 (E.D. Mo., 2006)</a>, cleaning up some formatting and removing some citations. This is a good cite because it discusses Supreme Court jurisprudence and the New York origins of the right of publicity doctrine.</p>

<blockquote>
  <p>The right of publicity is recognized by statute and/or common law in
  many states. <em>J. Thomas McCarthy, The Right of Publicity and Privacy §
  63 (2d ed.2005)</em>. A fairly recent concept, according to the Sixth
  Circuit in <a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=4n3tws0Vfgb1aVvjX7AlEpnKDqHsK%20wcyUq3oRrXjCBW2WwDpb3mK8pqJcOIPv00gJyMZYZK%20pfnCsBHJUeX6PHbj0kVyM6vw1YJNm%20IaSQZ1ZgXfkvoLPC%20FZ6NyB3mCAGAwc23CRaIAEgbsdMXGN/4TCY4Lw%20qaFoU0B9eaRo=" rel="nofollow noreferrer">ETW Corporation v. Jireh Publishing, Inc., 332 F.3d 915,
  929 (6th Cir.2003)</a>, this right "was first recognized in <a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=4n3tws0Vfgb1aVvjX7AlEpnKDqHsK%20wcyUq3oRrXjCBW2WwDpb3mK8pqJcOIPv00gJyMZYZK%20pfnCsBHJUeX6PHbj0kVyM6vw1YJNm%20IaSQZ1ZgXfkvoLPC%20FZ6NyB3mCAGAwc23CRaIAEgbsdMXGN/4TCY4Lw%20qaFoU0B9eaRo=" rel="nofollow noreferrer">Haelan
  Laboratories, Inc. v. Topps Chewing Gum. Inc., 202 F.2d 866 (2nd
  Cir.1953)</a>, where the Second Circuit held that New York's common
  law protected a baseball player's right in the publicity value of his
  photograph, and, in the process, coined the phrase `right of
  publicity' as the name of this right." Subsequently, in <a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=4n3tws0Vfgb1aVvjX7AlEpnKDqHsK%20wcyUq3oRrXjCBW2WwDpb3mK8pqJcOIPv00gJyMZYZK%20pfnCsBHJUeX6PHbj0kVyM6vw1YJNm%20IaSQZ1ZgXfkvoLPC%20FZ6NyB3mCAGAwc23CRaIAEgbsdMXGN/4TCY4Lw%20qaFoU0B9eaRo=" rel="nofollow noreferrer">Zacchini v.
  Broadcasting Company, 433 U.S. 562 (1977)</a>, 433 U.S. at 573, where
  a performer in a "human cannonball" act sought to recover damages from
  a television broadcast of his entire performance, the Supreme Court
  recognized that the right of publicity protects the proprietary
  interest of an individual to "reap the reward of his endeavors."</p>
  
  <p>The right of publicity is described in <em>Section 46 of the Restatement
  (Third) of Unfair Competition (2005), Appropriation of the Commercial
  Value of a Person's Identity: The Right of Publicity</em>. This
  Restatement provision states that "<strong>[o]ne who appropriates the
  commercial value of a person's identity by using without consent the
  person's name, likeness, or other indicia of identity for purposes of
  trade is subject to liability...."</strong> Relying on the Restatement, the
  Missouri Supreme Court held in TCI, 110 S.W.3d at 369, that "the
  elements of a right of publicity action include:   (1) That defendant
  used plaintiff's name as a symbol of his identity   (2) without
  consent   (3) and with the intent to obtain a commercial advantage."
  See also <a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=4n3tws0Vfgb1aVvjX7AlEpnKDqHsK%20wcyUq3oRrXjCBW2WwDpb3mK8pqJcOIPv00gJyMZYZK%20pfnCsBHJUeX6PHbj0kVyM6vw1YJNm%20IaSQZ1ZgXfkvoLPC%20FZ6NyB3mCAGAwc23CRaIAEgbsdMXGN/4TCY4Lw%20qaFoU0B9eaRo=" rel="nofollow noreferrer">Gionfriddo, 94 Cal.App.4th at 409, 114 Cal. Rptr.2d 307</a>
  <strong>("The elements of the [tort of the right of publicity], at common law,
  are:  '(1) the defendant's use of the plaintiff's identity;   (2) the
  appropriation of plaintiff's name or likeness to defendant's
  advantage, commercially or otherwise;   (3) lack of consent; and   (4)
  resulting injury.'")</strong>  To prove a violation of one's right of
  publicity a plaintiff must establish that the <strong>defendant commercially
  exploited the plaintiff's identity without the plaintiff's consent</strong>
  to obtain a commercial advantage. <a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=KiJ/1tomu66mP8SXAXGfTSlj9ianiwGBLZG7v9d2lbATK%20R1a6B4lkezBfk%20la5LtgjErCcrkalgTjlyRKq0UciFh3hAFCVXJP9%20iWgYyTSWjHZ97GBw9JNmHorx2dlGmz45H1wZ6nT/DCcNnO5scQbI91KC9%20hWvBlHCmnQNK8=" rel="nofollow noreferrer">Carson v. Here's Johnny Portable
  Toilets, Inc., 698 F.2d 831, 835 (6th Cir.1983)</a>.</p>
</blockquote>

<h1>Short Answer</h1>

<blockquote>
  <p><strong>Patenting a golf swing might be problematic.</strong></p>
</blockquote>

<h2>Explanation</h2>

<p>Apparently, the field of <strong><em>Sports Patents</em></strong> is an emerging area of the law. I will re-introduce <a href="http://jolt.law.harvard.edu/articles/pdf/v18/18HarvJLTech401.pdf" rel="nofollow">this 2005 Harvard Law Journal piece</a> @jqning referenced in his comment. So maybe it's too soon to say how any prospective patent on a golf swing would hold up in court? (After it makes its way through all the inevitable appeals.)</p>

<p>But from my point of view, patenting a golf swing might be problematic. </p>

<p>For example, I think that after a golfer swings in front of a few people that might qualify as a <strong><em>public disclosure</em></strong> and, therefore, make the swing <strong><em>public domain</em></strong> and, therefore, <strong><em>un-patentable</em></strong>.</p>

<p>Also, ... and I don't know what this is called... but let's say person <strong>A</strong> invents a <strong><em>black box</em></strong> that does <strong>X</strong> then puts that <strong><em>black box</em></strong> in the public domain. I don't think person <strong>B</strong> can then come along and receive patent protection on a <strong><em>green box</em></strong> that does <strong>X</strong>.</p>

<p>There was a rather remarkable case that ultimately changed what is allowed to be patented in the US. <a href="https://en.wikipedia.org/wiki/Diamond_v._Chakrabarty" rel="nofollow">Diamond v. Chakrabarty</a> concerned the patenting of GMOs and found that Congress intended for "anything under the sun that is made by man" to be patentable.</p>

<p>In <a href="http://www.ipmall.info/hosted_resources/SportsEntLaw_Institute/Sports%20patents/80JPatTrademarkOffSocy808.pdf" rel="nofollow">the article</a> @jqning provided in a comment, the author references this court case to tell the story of a golfer who created a very special swing after breaking his wrist. The golfer went on to patent his new swing form/technique because Diamond v. Chakrabarty essentially expanded patentability to absolutely everything involving humans.</p>

<p>Therefore if a golfer were to actually patent his/her swing, reselling it in any form would be restricted. However, since most golfers haven't done this, I assume it's fair game.</p>

<hr>

<p>Public disclosure has the possibility to block the patenting of a golf swing, but who says a golfer can't create a special swing in the privacy of his/her own home? It's all too easy to get around public disclosure here.</p>
