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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