NBA Deletes Evidence Of Players From All Team Websites Due To Intellectual Property

from the wow dept

Fri, Jul 1st 2011 11:42am — Mike Masnick

As you may have heard, the NBA and the NBA Players Association did not hit their deadline last night to reach a new collective bargaining agreement, and thus began a lockout/work stoppage. Of course, we're not a sports blog, so what's interesting about that for us? Well.... apparently over the last few days, the webmasters for all of the NBA team websites have been scrambling like mad, because they believe that when the players are locked out, there can be no mention or image of any player on any NBA webpage:

That's because the moment the clock strikes midnight on the current CBA, all those images and videos of NBA players have to disappear off NBA-owned digital properties. Depending on how you interpret "fair use," the prohibition could include the mere mention of a player's name on an NBA-owned site, though different teams have different interpretations of this particular stipulation.

That's from ESPN... who doesn't give any more detail as to what it is they actually think would be infringing here. It's certainly not copyright, even though that's implied. There's no copyright in names. And the copyright on the images would be held by whoever took the images, not the players. I'm assuming this is more of a publicity rights issue, which we've been discussing a lot lately. But those are generally based on a patchwork of state laws. And, even so, I can't quite see how that would prevent teams from accurately listing players who were on the team. That's factual information. But not according to the teams:

There are additional gray areas that are still up for discussion: What about a photo of a Lakers fan wearing a No. 24 Kobe Bryant jersey? What about a retrospective feature on the John Stockton-Karl Malone Jazz teams? Do tweets from the team's official Twitter feed that mention a player and/or link to an image need to be deleted? How about Facebook posts?

Nobody seems to know for certain the definitive answers to these questions and the criteria seem to be arbitrary. According to more than one team website staffer, the cutoff for images of retired players right now stands at 1992-93 -- Shaquille O'Neal's first season in the league. And social media is an area they're still grappling with as the deadline approaches.

However strict the boundaries, overhauling the architecture of these sites is a painstaking process that has a lot of talented web people around the league very stressed out. The NBA has built and furnished each team with a website "wire frame" that will take the place of the existing, much more sophisticated site. The wire frame is a rudimentary version of the site, without a lot of the snazzy technology we've grown accustomed to seeing. As a result, each of the 30 team sites will look virtually identical.

It looks like those "new" sites are in place. I've looked around at a few team sites, and while they may have old players (from decades ago), most traces of modern players have disappeared. They do list the names of players on the team under the "team" tab, but otherwise, the players seem almost entirely absent. And for what reason? Intellectual property shouldn't be part of a labor fight. It's got nothing to do with that. The whole thing just seems silly.

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Filed Under: basketball, copyright, fair use, lockout, publicity rights, web sites
Companies: nba

25 Comments

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Dark Helmet (profile), 1 Jul 2011 @ 11:36am

Uh, duh....
"That's from ESPN... who doesn't give any more detail as to what it is they actually think would be infringing here."

What'd you expect? ESPN isn't a sports journalism outfit, so they don't make a point to provide much in the way of information. They're a sports MARKETING company, so they provide mostly flash and dazzle.

The BooYa network sucks....
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Mike, 1 Jul 2011 @ 11:51am

This likely has more to do with the right to publicity and commercial exploitation of their likenesses, a quasi-intellectual property right.

I doubt that simply naming a persion (e.g., nomative use) would infringe those rights, but associating the person's name with a franchise might especially if there's no longer an affiliation.

Also, while there's fair use claims for photographs and news stories, the same is probably NOT true for having photos of the players in banners and the like that are merely meant to promote the franchise itself.

Just saying.
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DevConcepts (profile), 1 Jul 2011 @ 12:04pm

WTF!!!
Well, just to see I went to http://www.nba.com/bulls/index_main.html to look for my self.
No player info, stats, etc. Nothing. Zip. Nada.
Way to go NBA.
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johnjac (profile), 1 Jul 2011 @ 12:23pm

Re:
I don't think this is IP issue, just a contractual one. CBA probably says something like "outside this agreement owners may not use players likeness for profit."

Where it gets close to issues seen in IP is answering the question "Can one sign away their free speech rights?"
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:Lobo Santo (profile), 1 Jul 2011 @ 12:25pm

Re: WTF!!!
OMG you're right!
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Anonymous Coward, 1 Jul 2011 @ 12:41pm

While it's silly, maybe this is the best thing. Not only take away the players presence on the net but also take away the NBA's presence as well.

It is long ago time that both get the clue that they can only demand more if the public supports that with their fandom. If there is no interest and no mention of sports involving these groups, then maybe they get a clue they aren't the center of the world.
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Dark Helmet (profile), 1 Jul 2011 @ 12:44pm

Re:
"It is long ago time that both get the clue that they can only demand more if the public supports that with their fandom. If there is no interest and no mention of sports involving these groups, then maybe they get a clue they aren't the center of the world."

The NBA was more popular last season than at anytime since the Jordan era. In other words....no.
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txpatriot, 1 Jul 2011 @ 12:47pm

When did Tech Dirt become the "All IP, All the time" blog?
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btr1701 (profile), 1 Jul 2011 @ 12:54pm

Re: Re:
> "Can one sign away their free speech rights?"

Of course they can.

People do it all the time when they take job at a public or private organization.

Microsoft can limit free speech rights as a condition of employment and so can the US Army.

Try being an employee of the Microsoft or the military and then sit down and give a media interview about your job without permission from your superiors and see what happens to you.

There's only one constititutional right that the Supreme Court has held cannot be voluntarily waived and that's the one found in the 13th Amendment. And that's because the amendment abolishes slavery in the United States. It's not an individual's right not to be a slave, but rather the institution as a whole is outlawed everywhere within the US.
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btr1701 (profile), 1 Jul 2011 @ 12:56pm

Re:
> When did Tech Dirt become the "All IP, All the time" blog?

Are you new around here?
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Gigamonkey, 1 Jul 2011 @ 1:06pm

re�tard�ed

adjective /riˈt�rdid/

Less advanced in mental, physical, or social development than is usual for one's age.
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Anonymous Coward, 1 Jul 2011 @ 1:09pm

Re:
The article just before this one has nothing to do with IP.
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nasch (profile), 1 Jul 2011 @ 1:22pm

Re: Re: Re:
You can waive your right to vote?
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Anonymous Coward, 1 Jul 2011 @ 1:24pm

Re: Re: WTF!!!
Michael Jordan and Scottie Pippen are still on the site. Does this only apply to current players?
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Dark Helmet (profile), 1 Jul 2011 @ 1:56pm

Re: Re: Re: WTF!!!
Yes, because retired players, if I understand correctly, are not represented by the Union. That's why NBA Live basketball games during the 90's often didn't show Jordan (because he operated outside of the union for likeness rights), but now that he's retired they can use him in games like 2k11.

As for Pippen, he's actually part of management now, not a player, as the Bulls official team Amabassador (whatever the fuck that means)....
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btr1701 (profile), 1 Jul 2011 @ 1:59pm

Re: Re: Re: Re:
> You can waive your right to vote?

Yep.
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Anonymous Coward, 1 Jul 2011 @ 2:42pm

Re: Re:
Here is another IP story Mike could write about. Kodak didn't quite get what they wanted on this one. Let me know what you smart people think, here's the link:

http://www.physorg.com/news/2011-07-partially-kodak-apple-dispute.html
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Anonymous Coward, 1 Jul 2011 @ 2:57pm

Phoenix Suns website is scrubbed only pictures of the dancers and very old players.
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nasch (profile), 1 Jul 2011 @ 4:04pm

Re: Re: Re:
It sounds like a bunch of stuff that would have been invented with or without Kodak.
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btrussell (profile), 1 Jul 2011 @ 8:43pm

Re:
Its always been an Internet Presence, All the time, blog.
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Blatant Coward (profile), 2 Jul 2011 @ 6:00am

Re: WTF!!!
Welcome to the NEW NBFA!
National
Basketball
Forever
Alone
!!!
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Anonymous Coward, 2 Jul 2011 @ 12:39pm

It really isn't very hard to understand: The right to promote the players depends on them being under contract. When they aren't under contract, you cannot promote them.

I am always amazed when someone from Techdirt gets their manties in a knot over something that is so incredibly simple, that even an elementary school student could understand it.
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nasch (profile), 2 Jul 2011 @ 8:47pm

Re:
The right to promote the players depends on them being under contract.

According to what? Obviously there isn't a contract prohibit promotion, so what would restrict such a promotion right? Presumably it's publicity rights law. However, those are state laws, so what laws apply? The laws of each team's jurisdiction? Since the NBA is doing this across the board, that wouldn't seem to be how they're playing it. The jurisdiction where the NBA is headquartered? Where is that, and do they have publicity rights laws?

If this is so incredibly simple, you should be able to answer these questions off the top of your head.
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Anonymous Coward, 5 Jul 2011 @ 1:19pm

Re: Re:
Not hard at all. The players aren't under contract to the team, therefore their likeness cannot be related to the team for publicity use. The team website is effectively a marketing tool, so appearing on that website is part of the marketing of the team, and an image used of someone who is not under contact would violate their rights.

How hard is that to understand? Jurisdiction doesn't have much to do with it, in fact nothing at all.
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nasch (profile), 5 Jul 2011 @ 6:42pm

Re: Re: Re:
The team website is effectively a marketing tool, so appearing on that website is part of the marketing of the team, and an image used of someone who is not under contact would violate their rights.

What rights, exactly?
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