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Tuesday, May 08, 2007
WAKA v. DCKickball: A Claim Worth Kicking Aside?

In March 2006, I blogged about WAKA LLC v. DCKickball et al. (E.D. Va. May 30, 2006), a federal lawsuit brought by the founders of the World Adult Kickball Association ("WAKA") that asks for $356,000 in damages from rival DCKickball. WAKA's basic claim is that DCkickball infringed upon WAKA's copyright by engaging in "unauthorized use" of two of WAKA's kickball rules. Before evaluating the claim--which remains without a trial date--let's first discuss the parties.

WAKA, which was founded in 1998, is the largest sanctioning body for adult kickball in the United States. It features tens of thousands of members and teams across 23 states and in India. It has also been credited with "the popularization of the children's game as a recreational and social activity among adults."

In contrast, the upstart DCKickball started just a couple of years ago. While growing in popularity, it features several hundred players, all of whom play in Washington D.C.

Keep in mind an obvious point about adult kickball: players in these leagues are not professional athletes; they pay a registration fee to participate in a recreational sport. Along those lines, the main purpose of these leagues--which are co-ed and primarily feature persons in their 20s and early 30s--is a social one. DCKickball has many photos of off-field social events, such as the one to the right, evidencing this point and it expressly notes it in its Q/A:

5. Is this a serious league?

God, I hope not. Maybe about drinking. The focus of DCKickball, from the beginning, is about meeting people, having fun, and not taking things too seriously. But it’s pretty much up to everyone involved to contribute to this attitude. If you encounter anyone who isn’t into this, please tell them to chill-out. It’s just kickball, people.

So if it is just a bunch 20-somethings having fun playing kickball and hanging out at parties, why would their leagues sue each other?

WAKA claims that it enjoys copyright protection in its game rules and that DCKickball stole two of those rules: 1) the "clearly unique requirement that there be 4 men AND 4 women at a minimum to play" and 2) a 21-year old age floor for play. WAKA now seeks $356,000 in compensatory and punitive damages. WAKA bases its claims on the originality of its league and rules: while the four men who started WAKA acknowledge that they did not invent kickball, they assert that they were the first to start "social adult kickball" and to come up with its rules.

M.S. Enkoji of the Sacramento Bee just published an excellent article on the growing popularity of kickball, and she includes discussion of this lawsuit. Along with a number of other persons, I was interviewed by Enkoji, and I discuss the lawsuit. Here is the legal discussion found in Enkoji's piece:
But the very uncomplicated game of kicking a big red ball and rounding the bases -- think softball without the bats -- has become a federal case. WAKA has sued another kickball league, DCKickball, in U.S. District Court in Alexandria, Va., claiming "copyright infringement." WAKA is claiming that when former members broke off to form the second league, they stole WAKA's unique rules. Neither side will talk about the lawsuit.

"They think all of a sudden they created kickball? It's kickball," said Michael Murphy, general manager of the Golden Gate Sport and Social Club in San Francisco. "You roll the ball; someone kicks the ball," he said, explaining the basic rules of the game his organization also offers. "It's a free country." The San Francisco club, which has not been sued by WAKA, is part of a multi-sport national organization that started 12 years by some Chicago women interested in co-ed football.

"It's hard to believe that people would go to court over this," said Michael McCann, an assistant professor who specializes in sports law at the Mississippi College School of Law. "The notion that they own a sport, that's just crazy." McCann said the suit boils down to a complicated legal point that will be tough to prove. No one owns the mechanics of the game, just as baseball and basketball aren't owned, he said. But the way certain rules are "expressed" or used, such as requiring at least four women and four men on each team, could possibly be a copyright issue, he said.

So while WAKA can likely establish that it enjoys copyright protection in how it expresses a rule, it is very unlikely that it can establish ownership in the mechanics of that rule. John Marshall law professor William Ford, who blogs on Empirical Legal Studies, similarly noted this in response to my post last year:
You are free to copy the method of play, but you need to express it in your own words (or in words in the public domain) . . . The protection for the wording of rules has limits, however. When there are only a limited number of ways to express a rule, which would seem to apply in this kickball case, others should be free to copy the rule's wording under copyright's "merger" doctrine . . . WAKA's claim sounds very weak. It seems WAKA thinks it can monopolize a game mechanic or a short, one-sentence statement of a game mechanic.
Aside from its intellectual property dynamics, this lawsuit can also be viewed from a competition/antitrust perspective. In that vein, one might argue that it is an attempt by the much better financed WAKA to raise DCKickball's expenses and put it - WAKA's major competitor in DC - out of business. Whether that is true or not is unclear.

We'll keep you updated on WAKA LLC v. DCKickball et al. For a thoughtful response from a DCKickball player, see Martin Austermuhle's post on DCist.


Good to learn that kickball had become the hot new recreational team sport. I was very confused a few weeks ago when I saw dozens of people walking around the bars in our neighborhood on a Friday evening, wearing matching-color shirts that said "Kickball" on them.

Blogger Howard Wasserman -- 5/08/2007 2:47 PM  

By the logic WAKA is using, the following lawsuits could've been put into the legal system:

>> NFL vs. all of the American Football Leagues, the USFL, and the XFL (and Arena Football/af2?);

>> NHL vs. WHA;

>> NBA vs. ABA or FIBA;

>> MLB vs. Little League, Babe Ruth, or Cal Ripken leagues;

>> Any pro league vs. any college league or state association.

I'm trying to say that any lawsuit that involves copyrighting the rules of a league, including terms, is almost begging to be called frivilous.
Holding is holding; offside is offside; a goal is a goal. Very few terms can be substituted such that the public would not be confused hopelessly.

Anonymous Anonymous -- 5/08/2007 11:34 PM  

In addition, the rules that WAKA claims to be "copyrighted" are almost common sense.

It is a social game that involves drinking so obviously 21 would be the age limit.

There are typically 9 positions in baseball and the dimensions of a kickball field are likely similar or maybe a little smaller. If it's a little smaller, then 8 people works. Since it's a social game and you want to be fair, it would certainly make sense to have 4 guys and 4 girls.

WAKA is huge in Coconut Grove (Miami). I could foresee a handful of independent leagues popping up where WAKA doesn't reach. Seems like a lot of potential lawsuits...

Blogger Adam W -- 5/08/2007 11:58 PM  

A close reading of the DCKickball rules clearly shows that WAKA is in error. DCKickball only requires a minimum number of women on the field leaving everyone else to do the math.

Anonymous JJC -- 5/09/2007 12:53 AM  

Adam W:

I actually live in Coconut Grove, but did not know WAKA was huge until the night I saw the players walking around post-game . . .

Blogger Howard Wasserman -- 5/09/2007 7:12 AM  

Since it's a social game and you want to be fair, it would certainly make sense to have 4 guys and 4 girls.

Most amateur co-ed softball and soccer leagues have similar requirements. And have had so long before WAKA came along. DCKickball can always claim that it took the 4-women requirement from one of these other sports.

Anonymous Peter -- 5/09/2007 10:43 AM  

I was under the impression copyright protection only extended to non-novel ideas, despite whether it is written down. Does that mean WAKA rests its entire case on whether requiring half boys/half girls is novel? Requiring an age-limit is only for their protection.

If splitting the team up boy/girl is unique, I suppose Waka will sue student rec co-ed kickballs leagues next.

I wonder who owns flag football then.

Blogger Cory Carano -- 5/09/2007 7:07 PM  

I'm curious why the copyright claim hasn't already been dismissed -- was there a motion to dismiss?

Cory Carano brings up an interesting point, which is that WAKA could conceivably *patent* their method of playing kickball, assuming it's novel and nonobvious (which it probably isn't). But that just shows the weakness of the copyright claim -- aside from verbatim copying of the text of a rule, they should not be able to copyright the rule itself as a method of play, under 102(b).

Anonymous Bruce Boyden -- 5/10/2007 10:06 PM  

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