Indoor Rock Climbing: The Nuts and Bolts of Routesetting Copyright Protection Post-Star Athletica

Abstract

Indoor rock climbing is a relatively new sport; as a result, many legal issues as applied to the sport have not yet been explored. Because indoor rock climbing is rapidly increasing in popularity, issues like the copyright of indoor rock climbing routes will become relevant to the industry’s legal landscape. The growth of modern indoor rock climbing gyms has put a spotlight on route-setting. Today, it is clear that one of the main ways an indoor rock climbing gym becomes and remains successful is through innovative and sensitive route-setting that provides customers with new and challenging climbing experiences. Route-setting has become its own art form; the route-setter is the artist, the holds are the paint, the blank slab of wall is the canvas, and the climbing customer is the individual experiencing the route-setter's creation. Despite the fact that indoor rock climbing routes are works of sculptural art, there is no legal scholarship exploring potential copyright protection of these works. As useful articles, indoor rock climbing routes would have to survive a separability analysis to achieve protection for its fixed, artistic elements. However, indoor rock climbing routes currently pass separability analysis under the new standard established by the Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc (“Star Athletica”), allowing the routes themselves to be eligible for copyright protection. This comment presents a framework for analyzing the ability to copyright indoor rock climbing routes in light of recent developments established by Star Athletica and subsequent cases. Indoor rock climbing routes are eligible for copyright protection as artistic sculptural works. Section II discusses the history of indoor rock climbing and the development of the modern route-setting profession. Section III advances the framework that proves that indoor rock climbing routes are copyright-able, first by discussing the issue of issue articles and separability, then by examining the new test for separability as set forth in Star Athletica and its progeny. Section IV discusses the details associated with copyright protection for indoor rock climbing routes, comparing and contrasting literal movement with physical aesthetic similarity. Finally, Section V discusses the future of the indoor rock climbing industry, how copyright will co-exist with the development of the sport, and concludes.