Is Publishing A Magazine & Website About Ohio State's Sports Teams Infringing?

from the free-speech-anyone? dept

Wed, Sep 15th 2010 5:19pm — Mike Masnick

Earlier this year, we highlighted the ridiculousness and troubling implications of various court rulings that held that only sports teams or universities themselves could legally offer sports paraphernalia such as t-shirts, completely wiping out the tradition of fan-created t-shirts. The reasoning behind those rulings was tremendously problematic, and now may be extended much further, showing how those original restrictions could have huge free speech implications.

Paul Alan Levy, who had also written that earlier story, points us to the news that Ohio State has successfully obtained a temporary restraining order against a company that was seeking to publish a magazine and a website devoted to Ohio States' sports. That seems like a clear freedom of the press situation, and in a sane world, a situation that would make Ohio State happy. After all, more press coverage has to be good, right? But not when the university wants to be able to license the rights to anything having to do with the school's sports teams:

Instead of welcoming this additional coverage as a form of homage, and considering how a second set of web sites and magazines could intensify public interest and thus help promote the University, Ohio State went to court complaining of the defendants' attempt to "rip off" Ohio State's sports enterprise. The university protested that it had just started to license out the right to publish sports programs, instead of doing such publications inhouse, and if outsiders could publish programs without permission, the value of this licensing would be reduced.

This argument makes no sense. None. You could similarly argue that about any form of news coverage. I could say that I've licensed out the ability to write about Techdirt posts, and anyone writing about Techdirt without permission will have reduced the value of my license process. But, everyone would recognize that's a ridiculous claim.

Unfortunately, given little time, the publisher apparently wasn't able to muster compelling arguments against the temporary restraining order, which the judge granted, claiming that such a magazine would infringe on Ohio State's trademarks. As Levy notes, this is tremendously problematic from a free expression standpoint:

The price of creating a major sports franchise that is the main interest of the populace of a large state is that the teams become a legitimate topic of public conversation. Indeed, a well-counseled franchise ought to revel in being a subject of such discussion and indeed adulation. Third parties ought to be able to participate in that discussion even when their motivation is to make money from their participation. Trademark law should not be available to impede such discussion.

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Filed Under: fans, ohio state, sports, trademark

9 Comments

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Anonymous Coward, 15 Sep 2010 @ 5:46pm

The (Techdirt) article here isn't really cler what tOSU found infringing. If it's really just pubishing material about the tOSU, it's obviously ridiculous.

My suspicion is that it was actually the use of BUCKEYES or the logo or something that was cited by tOSU. That may or may not be ridiculous, depending on the use.
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Big Al, 15 Sep 2010 @ 6:23pm

Re:
From the linked article:
the company "announced plans to publish a �Buckeye Gameday� magazine and on �Ohio State Buckeye ebook,� all featuring lavish coverage of Ohio State�s popular sports teams and containing extensive advertising."

"the judge rejects the fair use defense by assuming that the issue is descriptive fair use rather than nominative fair use. That is, Buckeye Illustrated is a web site and magazine about the plaintiff's product, and there is no way to prepare such a magazine and web site without using Ohio State's trademarks throughout."

"Forbidding the sale of fan paraphernalia without a license is bad enough, but extending that monopoly to the right to publish written materials about sports teams would give those teams the ability to suppress unfavorable commentary, simply because it is published with a profit motive."

So - it is a suppression of views thinly disguised as a trademark dispute.
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Anonymous Coward, 15 Sep 2010 @ 6:33pm

It seems that it is purely a trademark/unfair competition issue and not copyright (the decision is here).
Defendants contend that “there are, frankly, only so many ways the term Buckeye can look in all caps.” This Court agrees. That is why when a company wants to make use of the trademarked term in connection with a website or print publication exclusively related to Ohio State athletics it must obtain a license.
I guess just about every fan site is illegal according to this judge.
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Anonymous Coward, 15 Sep 2010 @ 6:56pm

Big Sports (TM)(C)(R) is at it again
If Big Sports(TM)(C)(R) doesn't want people talking about their games, fine...then why doesn't the media just decide to give them what they want and not cover them? I can guarantee you if the media actually did that, they'd be begging for them to return pronto.

Big Sports(TM)(C)(R)...because no matter how much money they get for playing games that the other 99.99999999% who play them do merely for love of the game, it's never enough.
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jmproffitt (profile), 16 Sep 2010 @ 12:29am

What about Ohio State's public status?
Though the copyright infringement ideas hold sway in our courts these days, what about the fact that OSU is a state-supported land-grant university?

On top of their sports activities being public domain by nature of being open to the public, these events, the facilities, the salaries of staff and the students themselves are supported, at least in part, by the generosity of federal, State and local government and taxpayers.

That fact doesn't invalidate any relevant laws regarding trademark and so forth, but it should weigh heavily on the minds of the judges.

As for the term "buckeye," that word is used statewide to refer to people from Ohio in general as well as fans of and students at Ohio State. It's also used by biologists / botanists. NO WAY does OSU "own" such a term.
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JEDIDIAH, 16 Sep 2010 @ 6:06am

We need Cletus to help sort this out.
The Buckeyes are a brand like any other. It's a big school. Columbus is also a big "college town". Anything that serves to suppress the alumni and expatriate community is really remarkably stupid. It's counterproductive to brand building with a widely dispersed fan base.

Et tu Brute?
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Any Mouse, 16 Sep 2010 @ 11:53am

Re: What about Ohio State's public status?
Please read again. This isn't about copyright, but trademark, and in the area of collegiate sports, OSU does in fact control the use of the word. However, this is a suppression of the media, which goes against the Constitution. The magazine used the wrong arguments to defend themselves, it would seem, but I wouldn't be surprised if this is appealed.
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Montezuma (profile), 16 Sep 2010 @ 12:11pm

Ohio State is just another arm of the government, is it not? In Georgia(where I live), our State Universities are governments by our government and, in turn, owned by our Government. I am guessing that Ohio State is run wholly by the State of Ohio, so how does the State believe they can just trample this publisher's rights?

There is no argument here; this is a clear-cut violation of the First Amendment. If this were a private college/university, then there might be some argument, but even those entities receive public funding(a lot, actually), so it would be a hard argument to run with.

This publisher should have been able to go into court a yell, "FIRST AMENDMENT, damn it" and walk away a winner. What was their argument? Sun spots created a wormhole, and we thought this was ok?
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Matthew A. Sawtell, 16 Sep 2010 @ 12:43pm

Not terribly surprised...
If anyone wants to know why the U.S. has fallen off the tracks when it comes to education - it level of bullshyte like this. Of course OSU is going to scream bloody murder, it wants to covet its multi-million dollar generating sports machine - regardless if folks in Ohio are barely able to send their children to this "university".
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