Who owns the Copyright to a Sporting Event?

14 05 2008

The short answer- Nobody.

The long answer- It was the question the Second Circuit addressed in NBA v. Motorola, Inc., 105 F.3d 841 (2d Cir. N.Y. 1997). Motorola was selling hand-held pagers called “SportsTrax” which would display updated play-by-play information about the progress of the games. This was done without the NBA’s permission, and NBA sued for misappropriation.

Time for a little history lesson. Back in 1918, there was a case where a company called International News Service, was sued by the Associated Press. INS would read AP bulletins and then send that news by telegraph to its own customers, sometimes rewritten, and sometimes verbatim. So AP and the AP newspapers did all the work, and INS was trying to profit from it. Hello lawsuit. This case made it all the way to the U.S. Supreme Court.

An important part of the INS case was that it clarified that while a news article may be copyrighted, “the news as such, is not copyrightable.” BUT, the court ruled that “one who gathers news” may be said to have quasi-property rights in the fruit of that labor against his competitor. The injunction against INS was upheld, to the extent that they could not copy the news while it was still valuable (but after the freshness of the news died, there was no proprietary right to it). Note that this would never have prevented INS from going out and reporting on the same news, it just prevented INS from doing their news-gathering by reading the AP wire.

Back to the NBA case. It was this principle that NBA wanted to use against Motorola.

The Motorola court said that a “hot news” claim was still valid 80 years later but only under limited circumstances.

Specifically, a “hot news,” quasi-property claim on the facts of the news could be applied when:

  • a plaintiff generates or gathers information at a cost;
  • the information is time-sensitive;
  • a defendant’s use of the information constitutes free-riding on the plaintiff’s efforts;
  • the defendant is in direct competition with a product or service offered by the plaintiffs; and
  • the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

The Motorola court went on to rule that NBA did not have that kind of proprietary right on the facts of the sporting event. It went on to evaluate a more straightforward look at the copyright law:

“17 U.S.C.S. § 102(a) lists eight categories of “works of authorship” covered by the act, including such categories as “literary works,” “musical works,” and “dramatic works.” The list does not include athletic events, and, although the list is concededly non-exclusive, such events are neither similar nor analogous to any of the listed categories. (Motorola at 846).”

Basically, the sporting event was not a creative expression because they are not “authored.” In theory, sports have no underlying script. Further, the court elaborated that to allow copyright of a sports competition, then figure skaters, whose moves are orchestrated, could copyright their moves, such as the triple lutz, and prevent their competitors from using the same move and that would destroy competition in sports.

Keep in mind, that the broadcast of a sporting event is absolutely protected by copyright. And of course, a photo of a sporting event is protected by copyright. But the event itself is not, according to this case.

Friends, as the sports associations try more and more to become exclusive “content producers,” this could become a bumpier ride.

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Law is Phun, pt. 2

13 05 2008

Part deaux in our Law is Phun series, another “delightful” case name, courtesy of a footnote from Easter Seals:

United States v. 11 1/4 Dozen Packages of Article Labeled in Part Mrs. Moffat’s Shoo Fly Powders for Drunkenness, 40 F. Supp. 208, 209 (D.N.Y. 1941)

– Well, I think if you tried to guess what this case might be about, you would probably guess right. Back in 1930’s, Mrs. Moffat (probably really a guy) marketed this product made of Antimony & Potassium Tartrate, claiming that it “cured” drunkenness. Before you run out to the grocery store looking for Potassium Tartrate (whatever THAT is- a distant cousin to the Carbolic Smokeball, perhaps?), you should know that the court granted an order condemning the product as mislabled, because:

1) it did not cure drunkenness; and

2) it was dangerous to health.

If you want to know more about the dangers of promising a cure that you can’t deliver, read Carhill v. Carbolic Smokeball Co., 1 Q.B. 256 (1892), a case where a manufacturer promised £100 to anyone who used the “health promoting” smokeball and got the flu. Unfortunately it was in the middle of a flu epidemic. The ad was determined to be an offer (a departure from the usual, more on that later), which was accepted when you got the flu. Uh Oh.

Please comment or ask questions. It will make this site more phun!





Law is Phun!

11 05 2008

So a while back, I was researching copyright cases, and I read a footnote about how one case would now be on the judge’s list of amusing case names. I thought that was an interesting comment. Here it is…

Easter Seal Soc. for Crippled Children & Adults, Inc. v. Playboy Enterprises,

815 F.2d 323 (5th Cir. La. 1987)

(the judge called this case name “delightful” and referred to the other two that follow in subsequent posts)

– Okay, I know you are dying to know… what possible beef could the crippled children have with good ol’ Hugh? Well basically, according to the case, Easter Seals worked with a PBS station to get footage of a staged mardi gras parade for a telethon.

That PBS station later responded to a request from a producer in Canada seeking mardi gras footage. The station was unaware of the end user for the footage, but it was bought by a producer for a… movie.

Unhappy that their parade was now in a film called “Candy the Stripper,” showing on the Playboy Channel, Easter Seals sued Playboy in federal court for copyright violation. But the court ruled that since the Easter Seals was not the author of the video, they had no standing for a copyright suit.

The videographer was not an employee of Easter Seals, he was an employee of the station, so Easter Seals did not own the copyright, the station did. Thus they could not sue. Summary judgment for the defendant was upheld (case dismissed).

This is a great case because it goes into great detail about the concept of work-for-hire; the definition of employee; how courts have evolved in determining whether a commissioned work is a work-for-hire with a copyright transfer over the years; and how the Copyright Act of 1976 took that evolution and put it into statute, partially adopting and partially modifying case law of the time. It addresses some of the ambiguity of the work-for-hire doctrine.

If you really want to read an in-depth evaluation of the work-for-hire doctrine, this case is a great place to start. I simply don’t want to make this post any longer, but this case is a great read. (and thanks to Circuit Judge Gee, for pointing out the other cases U.S. v. Satan, and Mrs. Moffat’s Powder for Drunkenness)

If you have comments on this case, please post them.





Welcome to Photoblawg

10 05 2008

A blawg, is a blog that deals with legal issues. b-law-g — get it ? ;O)

A photo is… light captured in a fixed medium (let me know if you have a better definition).

I am a photographer who spends a lot of time and energy advocating for photographers and educating photographers through my role as the NPPA Advocacy Chairperson. This led to an interest in the law and my decision to enroll in law school. I just finished my first year in a four-year evening program at St. Mary’s University School of Law.

As I spend many hours reading countless cases critical to legal doctrine, I see many connections to photographers and the work we do every day. My goal with this blog is to share that information with my colleagues. So you get some of the benefit, without having to pay the tuition! (sorry, reading this blog won’t allow you to sit for the bar, though).

I decided that it might be valuable to share this as I learn it. So keep in mind that while based on facts, the purpose of this blog is to share insights and be a resource. It is not intended as legal advice. Those who need legal advice should seek a lawyer, not a law student, and have no business relying on blogs for legal advice anyway.

I will soon post a list of lawyers I know with expertise in photography and journalism.

My photo website is at www.aliciaphoto.com