Let's Go, Intellectual Labor! No Copyright for Inane Cheer

According to the Tenth Circuit Court of Appeals, one can only copyright material that requires "intellectual labor."

"Let's Go Thunder," in the court's opinion, did not require sufficient thought to be entitled to copyright protection.

Charles Syrus wrote a song for the Oklahoma City Thunder (Thunder), a professional basketball team in the NBA. Syrus gave a copy of his song, for which he has a copyright registration, to the Oklahoma City Mayor's office in 2008. He also gave the song to an unnamed coach and to the team's head cheerleader as part of a fan engagement activity.

Syrus claimed that various uses of the phrases "Thunder Up," "Go Thunder," and "Let's Go Thunder" violated his copyright because the phrases were taken from his song's lyrics. More specifically, he claimed that the phrases were chanted during games by the team's cheerleaders, its mascot, and the crowd. He also claimed that Thunder used the phrases in advertising and on banners displayed at the team's home arena.

Syrus sued, seeking "20-30% of net gross" as compensatory damages. (Can you believe that the district court dismissed this claim?)

On appeal, the Tenth Circuit Court of Appeals ruled that a short phrase demonstrating sufficient creativity could receive copyright protection, but Syrus's pro-Thunder cheers did not reflect the minimal creativity required for copyright protection.

The court reasoned that the phrases were "merely predictable variations on a cheer widely used in sports, that is, 'Go' or 'Let's Go' combined with the name of the team for which the cheer is uttered." Thus Syrus's addition of the team name "Thunder" to the base form of the cheer required no intellectual labor.

The entirety of Cyrus' song could be subject to copyright protection, but that did not mean that every element of the work could be protected.

Professional sports leagues and passionate fans have been known to get involved in legal showdowns over team cheers; before the 2010 Super Bowl, the NFL claimed that it owned the rights to "Who Dat," the New Orleans Saints cheer, and could stop vendors from selling Who Dat-branded merchandise. The NFL eventually backed down, admitting that it did not have exclusive ownership of the phrase.

Would you take a team cheer copyright protection case? Do any team cheers incorporate the "intellectual labor" necessary to secure copyright protection?

Related Resources:

• Syrus v. Bennett (Tenth Circuit Court of Appeals)
• Who Dat Filing all Those Trademark Suits? (FindLaw's Legally Weird)
• Who Dat Owns 'Who Dat'? Dat's Us, Sez da NFL (The Wall Street Journal)
• Commercial General Liability Policy Covers Patent Infringement? (FindLaw's Tenth Circuit blog)