Can A Sports Organization Claim Copyright On Stuff You Filmed Yourself?

from the seems-difficult... dept

Fri, Apr 24th 2009 6:43am — Mike Masnick

Earlier this year, we noted that with the rise of the ability to film and broadcast video directly from mobile phones, it was only a matter of time until we ran into some legal battles about fans filming and "broadcasting" a live sporting event. Now, while those who control the venues can certainly put their own restrictions about what you do while on their property, it's going to become increasingly impossible to stop people from filming with their mobile phones. The next question, though, is what happens to that footage?

A bunch of folks have sent in a story by Rory Cellan-Jones about how YouTube took down a video he had uploaded of 37 seconds of a football (soccer for us Americans) match in the UK he had attended. As he noted, he knew that the football leagues in the UK were angry over their content being webcast, but he thought it was for taking the official stream and rebroadcasting it online.

This actually raises a lot of questions. I'm not sure of the details on UK copyright law here, so perhaps it's different, but in the US, the copyright on the video would belong to Cellan-Jones, since he took the video. The league would have every right to demand he stop or to remove him from the stadium, but it's not clear if it could stop him from posting it online afterwards -- and it certainly wouldn't be allowed to file a copyright notice demanding it be taken down, as that would be falsely representing themselves as the copyright holder on the content. It doesn't sound like Cellan-Jones is looking to fight this, but this question isn't going to go away, and I'm sure eventually we'll see some lawsuits on this very topic.

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Filed Under: copyright, sporting events, video

37 Comments

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Ima Fish, 24 Apr 2009 @ 7:03am

The question you're really asking is whether sporting events are copyrightable, such as the live performance of a song or dance would. In the US the answer is no:
National Basketball Ass'n v. Motorola, Inc. 105 F.3d 841 C.A.2 (N.Y.) 1997

As noted, recorded broadcasts of NBA games-as opposed to the games themselves-are now entitled to copyright protection. The Copyright Act was amended in 1976 specifically to insure that simultaneously-recorded transmissions of live performances and sporting events would meet the Act's requirement that the original work of authorship be “fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). Accordingly, Section 101 of the Act, containing definitions, was amended to read:

A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

17 U.S.C. § 101. Congress specifically had sporting events in mind:

[T]he bill seeks to resolve, through the definition of “fixation” in section 101, the status of live broadcasts-sports, news coverage, live performances of music, etc.-that are reaching the public in unfixed form but that are simultaneously being recorded.

H.R. No. 94-1476 at 52, reprinted in 1976 U.S.C.C.A.N. at 5665. The House Report also makes clear that it is the broadcast, not the underlying game, that is the subject of copyright protection. In explaining how game broadcasts meet the Act's requirement that the subject matter be an “original work[ ] of authorship,” 17 U.S.C. § 102(a), the House Report stated:

When a football game is being covered by four television cameras, with a director guiding the activities of the four cameramen and choosing which of their electronic images are sent out to the public and in what order, there is little doubt that what the cameramen and the director are doing constitutes “authorship.”

Accordingly, in the US, someone who did their own camera work and direction while recording a sporting would have authorship in his or her recording. And no one else would have any such claim.
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Murdock (profile), 24 Apr 2009 @ 7:35am

The exclusion was on his ticket
I'm willing to bet that on the back of the ticket he purchased there was a notice saying "By attending this event you agree not to record, photograph or otherwise detail the events" blah blah. If he's in a public place and records a game, no problem. Once you enter that stadium you are subject to their rules. I imagine that's why it got taken down.
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Ima Fish, 24 Apr 2009 @ 7:39am

Re: The exclusion was on his ticket
"I'm willing to bet that on the back of the ticket he purchased there was a notice saying "By attending this event you agree not to record, photograph or otherwise detail the events" blah blah..."

You're absolutely right, but what does that have to do with copyright?
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Anonymous Coward, 24 Apr 2009 @ 7:48am

I'm sure that many lawyers have gone over the notice on the back of the tickets to close any loopholes. I would be willing to bet that if the ticket specifies that the spectator cannot record the game, then the recording would violate the agreement and therefore the spectator would not be allowed to claim copyright of his recording.
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Anonymous Coward, 24 Apr 2009 @ 7:52am

I'm no lawyer but I'm willing to bet that the following notice would get the job done

"Any unauthorized recording of this event will be considered the property of (insert sports franchise here)"
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Ima Fish, 24 Apr 2009 @ 7:55am

Re:
Now that language might work.
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BTR1701, 24 Apr 2009 @ 7:56am

Re: Copyright
> if the ticket specifies that the spectator
> cannot record the game, then the recording
> would violate the agreement and therefore
> the spectator would not be allowed to claim
> copyright of his recording.

No, all that would mean is the League would have an action against the fan for breach of contract and whatever damages the court would assign for that breach.

Such a prohibition on the ticket would have no effect at all on the assignment of the copyright.

The fact that the fan made the recording in violation of his contract with the League in no way nullifies the fact that federal assigns him copyright ownership in the video he made.
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Ima Fish, 24 Apr 2009 @ 8:00am

Re:
Telling someone that they cannot record something in no way affects the copyright. I might, for example, break into your house and make a video of everything I see. I might be arrested for trespass and breaking and entering. You might sue me for invasion of privacy. But the copyright of my video would remain mine.

Now I would imagine, as someone else has pointed out, that the license on the back of the ticket further states that any such recording would be the sole property of the team or franchise, just to cover their butts.
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BTR1701, 24 Apr 2009 @ 8:03am

Re: Law
> Any unauthorized recording of this event
> will be considered the property of (insert
> sports franchise here)"

My response would be, "You can consider it anything you like. It's not what you consider that matters. It's what the law says that controls."

And courts have been traditionally *extremely* skeptical of boilerplate legal jargon written in tiny print on something like a ticket stub, sandwiched between Taco Bell and Coke ads, and which the average consumer doesn't even know is there.

I read more than a few contract cases in law school that hinged on that kind of language and every time the court found in favor of the consumer, saying the plaintiff had to do more to make the consumer aware of the terms of the agreement than print microscopic disclaimers on things like receipts and sales slips.
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Jeffry Houser (profile), 24 Apr 2009 @ 8:06am

Reminds me of the issues faced by people who would record live concerts.

Although in those situations there were two different copyright in play. Copyright of the recording and copyright of the material being performed.

The second doesn't really apply in a sporting event, since it is in essence, an unscripted performance.
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RAD, 24 Apr 2009 @ 8:06am

Copyright and public places
Murdock
What if the place the pictures or videos were taken was on public property? I do not know about the UK but lets say you took the video at Yankee Stadium which was funded by public funds. I would say the rules of now do not apply. Baseballs belong to MLB even if hit out of the park. At least that is what is on the back of the ticket I last had.
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Donald, 24 Apr 2009 @ 8:31am

Re:
AC above is correct I think. Apparently on the back of the ticket in the conditions is a clause stating that you agree to assign the copyright on any pictures or footage you take over to the league. As such, when you then post footage you took online, you are breaching their copyright.

The trick then is to get a long range camera and take footage of the match from a neighbouring building :)

I want to know whether their copyright grab extends to words you write during the match - would they retain copyright to a match report you wrote during the match? Presumably not one you wrote outside the grounds?
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DevilAdvocate, 24 Apr 2009 @ 8:42am

Tickets are not contracts
Just printing something on the back of a ticket does not make it binding as a contract. If it did, I'd be handing out tickets to people that read 'accepting this ticket means that all of your property including house, car, wife and kids now belong to me'. Then I'd be showing up with witha claim to your property based on your acceptance of the contract.
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James (profile), 24 Apr 2009 @ 8:58am

Re: Re: The exclusion was on his ticket
you are correct. it has nothing to do with copyright. By violating the terms of entrance, he was guilty of criminal trespass, not copyright infringement.
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Rick, 24 Apr 2009 @ 10:37am

Re: Re: Copyright
Contracts must be read beforehand and signed to be valid.

Placing terms on a ticket you can't even read until you buy it, is no more effective than an EULA that says you should return software to a store after you opened it.

The store won't take it back and neither will the ticket seller.
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kirillian (profile), 24 Apr 2009 @ 10:53am

Re:
@ Jeffry Houser - Actually, neither copyright situation applies in this case - as Ima Fish noted, the sporting event in and of itself is not copyrightable...only the broadcast of the event.

So no such situation exists at all.
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Overcast, 24 Apr 2009 @ 11:21am

"certainly put their own restrictions about what you do while on their property"

In many cases - where they play is not their own property. Cincinnati for example - the stadiums are owned by the county.

But in any event neither the Reds or the Bengals own the stadiums. So any attempt to restrict recording there is basically an organization giving you restrictions on public property.

Perhaps they are in fact tenants; and in normal circumstances the tenant has a good amount of rights over control of the property - but how far does that go when the taxpayers are the actual owners?
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Michial, 24 Apr 2009 @ 11:25am

Everyone is overlooking the logos and such on the jerseys
At the very least the Soccer league could claim that the person filming did not have permission to use the logos from the jerseys in the film, or any material displayed on the walls of the stadium etc...

This would constitute the right to request the material be taken down...

If you ever notice in a movie or TV show the actors will be drinking from non existant brand named cans and bottles etc... When you do see a legitimate brand or logo in a movie you can bet that the producer either is being paid to display the log or at least has permission to use the logo in the movie.

If you ever watch a war movie you will notice that rarely if ever will you see a US Soldier in "propper" uniform, there is always something on the uniform that is not correct such as the stripes for rank being upside down or some pin or something that does not belong. This is because the US Military rarely gives permission for their uniforms to be displayed correctly.
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Mike (profile), 24 Apr 2009 @ 11:56am

Re: Everyone is overlooking the logos and such on the jerseys
At the very least the Soccer league could claim that the person filming did not have permission to use the logos from the jerseys in the film, or any material displayed on the walls of the stadium etc...

This is incorrect. Trademark law says no such thing. You absolutely can film logos on the jerseys.
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PRMan, 24 Apr 2009 @ 12:14pm

Nobody is mentioning Invasion of Privacy
Ima Fish would NOT have the right to broadcast a video of the inside of my house after breaking and entering. This happens with movie stars and paparazzi all the time. The movie stars are not allowed to be filmed INSIDE their house or backyard or anywhere that they have a reasonable expectation of privacy, and invasion of privacy can turn into a big suit.

But, similarly, even when investigative reporters sneak cameras past a "No cameras beyond this point" or when they trespass in a public place, their video remains their property.

I would have a hard time imagining a US court saying that a sporting event with (let's say) 10,000 people or more has a "reasonable expectation of privacy". So in the US, the person would definitely have the right to their video.

In order to stop them, the arena would have to stop them then and there at the moment of recording and then kick them out after catching them. They also would not have the right to take the video or chip of the recorder. That could be a large suit as well.
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Anonymous Coward, 24 Apr 2009 @ 1:05pm

Re: Nobody is mentioning Invasion of Privacy
This, and other comments above, don't address the issue of copyright. Privacy laws may prevent me from publishing such video, but they do not assign my copyright to someone else.
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Jeffry Houser (profile), 24 Apr 2009 @ 1:11pm

Re: Re:
I must have been very unclear in my post or very wrong in my understanding.

It sounds like you told me I'm wrong, then re-iterate my very same point to me.

Is a broadcast the same as a recording? If not, I would think that the recording would be copyright, not the broadcast. Isn't a broadcast just the act of letting someone watch a recording?

If someone creates a tape of the event; why should they not have copyright on that recording under existing copyright laws?
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davidwr, 24 Apr 2009 @ 8:33pm

Re: The exclusion was on his ticket
The issue is not "is he subject to their rules" but "what is the appropriate penalty for violating their rules?

An appropriate penalty might be for the performers to sue the bootleg videographer for an injunction prohibiting publication and asking for monetary damages. Once the injunction is granted, threaten the defendant with contempt if he doesn't take reasonable steps to prevent re-publication. A "reasonable step" would be to take down your own postings of the video and use the DMCA to demand that others who have posted it without your - you being the videographer who made the bootleg video - permission take it down.
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Anonymous Coward, 24 Apr 2009 @ 8:39pm

Re: Copyright and public places
There's "public access property" like a park, and there's "publicly owned property" like Yankee stadium or even a park if it's roped off for an event that restricts access to ticketholders.

If you are in a public park at a top of a hill overlooking an MLB stadium and video the event, there's not an issue. If you are in Yankee Stadium during an event that you have to pay or have permission to get into, there's a problem.

Even free events can be restricted if the organizers get exclusive use of the venue and conspicuously post signs like "in consideration for being allowed in, you agree to the following ..." and the restrictions are themselves not illegal. Common restrictions I've seen at free events usually deal with limiting outside food, inspecting backpacks, limiting beverage coolers, and no glass bottles.
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davidwr, 24 Apr 2009 @ 8:42pm

Contracts do not need to be signed
They need to be agreed to.

A signature is a strong indicator of an agreement, but even it may not be enforceable if you can convince a judge or jury the signature was under duress. Likewise, if witnesses testify you verbally agreed to a contract, you can be bound to it in most cases.

Many states and countries require certain contracts be in writing, notably, long-term contracts, real-estate contracts, and contracts to transfer "titled" items such as cars.
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Anonymous Coward, 24 Apr 2009 @ 8:44pm

Re: Everyone is overlooking the logos and such on the jerseys
From a copyright issue, that would probably be considered "fair use."

They might be able to sue for misuse of a trademark, however.
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bikey (profile), 27 Apr 2009 @ 2:28am

Re: sports copyright
Thanks for this excellent summary. The situation is the same in Europe - it is the basis of copyright. You can't own a game, only the fixed form of the performance (a related right, along with those of record producers and performers). This is why we are seeing an increasing amount of criminal penalties being enacted for bringing a copying aparatus (camera or recorder) to any kind of performance, including a sports event. It's the only way to stop people from recording their own 'version' of the sports event.
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bikey, 27 Apr 2009 @ 2:31am

Re: Re: Re: Copyright
You're wrong Rick. It's a classic contract. There's offer, there's acceptance, there's consideration. If one had to read a contract before accepting it (which need not require signature except in certain cases), 90% of the contracts in the world, including insurance, banking and payment for just about anything) would be invalid by claiming you didn't read it. Sad but true.
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bikey, 27 Apr 2009 @ 2:37am

Re: Re: Re: broadcast etc.
Performance, production, broadcast - these have all been given 'copyright' protection in recent years, i.e. after 1970s when 'copying' became possible through new technologies. They are considered rights in investment rather than creativity and have until recently been given lesser terms of protection (until EU decided to ratchet them up to normal copyright term of 70 years at the behest of US-based and Sarkozy-based lobbies). Though they are lumped together in law, you are right that performance is different - it is the performance itself that is protected - it belongs to the performer, while the 'game' is not (i.e. it doesn't belong to the players or the ball club), only the economic right to shoot and broadcast your version of the game. Hope this helps.
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Anonymous Coward, 27 Apr 2009 @ 3:58pm

It doesn't matter if you didn't read the contract. You have to be shown the contract and agree to it. Just being handed a product you purchased without your attention being called to said contract, asking for your agreement of said contract, doesn't amount to anything.

If I buy a pack of cookies, it doesn't matter if there's a contract in tiny print. If the salesman, handing it to me, says "do you agree with this contract" you *might* have a case that actually reading the contract is not necessary.
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friend, 5 May 2009 @ 9:18pm

Re: Re: Re: Re: broadcast etc.
I have concert footage that I got from the feed from a concert as I obtained a press pass for my web show. Am I allowed to resell this content (the concert feed footage) without the sound? The feed was from the big screen at the concert. We were allowed to record the feed as was AP. Can I sell that video as my own without the sound? Thanks for your help in advance. :)
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Anonymous Coward, 30 Nov 2019 @ 3:30am

Re: Re: Re: The exclusion was on his ticket
Not likely, but maybe fraud.

A man who didn't pay a prostitute was found not guilty of rape on similar logic.
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Anonymous Coward, 30 Nov 2019 @ 3:31am

Re: Re:
The copyright wouldn't be valid due to how the work was created.
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Anonymous Coward, 30 Nov 2019 @ 3:32am

Re: Re: Law
And courts have been traditionally extremely skeptical of boilerplate legal jargon written in tiny print on something like a ticket stub, sandwiched between Taco Bell and Coke ads, and which the average consumer doesn't even know is there.

So Taco Bell and Coke are wasting their ad money?

I used to read the tickets btw.
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Anonymous Coward, 30 Nov 2019 @ 3:33am

Re: Re: Copyright and public places
So before they tore down Shea Stadium, did anyone record games from the subway platform that has a direct line of sight to the infield from past right-center?
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Anonymous Coward, 30 Nov 2019 @ 3:35am

Re: Re: Re: Copyright and public places
Also aren't there a bunch of homes that can see games at Wrigley?

At Shibe Park in the 1930s, people used to charge admission to their porches because people could see games from there and MLB supposedly got ticketd.
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