The NFL Flexes its Copyright Muscle

Auric D. Steele

The National Football League, in the simplest IP terms, is an association of trademark owners who combine to create one exceptionally powerful copyright owner. In recent years, the NFL has been accused of overstating and overexerting its rights under copyright. The League flexed its formidable copyright muscle to prevent churches from presenting the Super Bowl on congregational big-screens; it took action against for-profit fantasy football leagues, which utilize real NFL statistics; and, it engaged in a tug-of-war with an activist attorney over whether or not the NFL’s televised copyright warning is itself protected by copyright.

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Note: We were unable to come to terms with Getty Images, the primary licensor of authorized NFL photographs, for use of images of current players to use in this article. Getty offers a standard three-month license for Internet use, which is impractical for The Brand’s archival system.

In August, the Computer & Communications Industry Association (CCIA) filed a complaint with the Federal Trade Commission against the NFL, Major League Baseball, and several prominent entertainment companies. CCIA alleges, among other accusations, that the league’s persistent overstatement of rights under copyright amounts to a violation of the rights of consumers.

The NFL’s Copyright Warning: What all the Fuss is About

“This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.”

Copyright law protects original works of authorship fixed in a tangible medium. For NFL telecasts, the originality requirement is met by the many creative choices that go into the NFL’s specific documentation of each football game. This has always been the basis for copyright in a “recording,” whether it is a photograph of a tree or an audio recording of rainfall. The author does not hold a copyright in the thing or event it records, only the recording itself. Others are free to photograph the same tree or record the same rainfall.

Likewise, the NFL holds no copyright in the particular competition it records; it only holds copyright to its specific documentation of it. A football game is an event, which, when broken down is just a series of minor events, which are measured and recorded as statistics. These elements of a football game are, as Justice Pitney would say, “the history of the day.” Neither the football game nor its individual statistical elements are proper subject matter for copyright. They are part of the public domain. To put it bluntly, the NFL no more owns the spontaneous events it records than Abraham Zapruder owns the assassination of President Kennedy. Like Zapruder, the NFL is a bystander to an event that unfolds in front of it. However, like Zapruder, the NFL is entitled to the protection of copyright law for its original documentation of that event, which is fixed in the tangible medium of film. This protection exists even if it is broadcast live, as long as it is fixed simultaneously with transmission.

For the Private Use of Our Audience

Among the list of exclusive rights reserved to the author of a copyrighted work is the right to “perform the copyrighted work publicly.” To perform a work publicly means to perform the work at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family or social acquaintances is gathered. This definition would include most churches. Whether it is wise from a public relations standpoint to enforce this right against churches is another matter.

Any Other Use of This Telecast

While the NFL is entitled to copyright protection for its actual telecast, it is subject to the limitations on exclusive rights under “fair use.” Fair use is a common law doctrine which is now codified in Section 107 of the Copyright Act. The purpose of the doctrine is to balance the goals of copyright protection with the rights of freedom of speech, freedom of the press, and other societal and public policy interests.

Section 107 of the Copyright Act provides for limitations on the exclusive rights granted to authors for certain purposes including criticism, comment, news reporting, teaching, scholarship, or research. The section lists factors to be considered to determine if a particular use of a work is a fair use. In law, the use of the term “factors,” rather than “elements,” signals a weighing of specific facts on a case by case basis. This means that there are no hard and fast rules for determining fair use in a given situation. As Constitutional scholar Cedric Powell is fond of saying: this is mushy.

One of the persistent complaints about the NFL’s copyright warning is that it fails to inform consumers of their “rights of fair use.” However, this is an improper characterization. Fair use is not a right. It is more correctly characterized as a limitation on someone else’s right, specifically the exclusive right of the copyright owner to authorize or prohibit all use of the work. Fair use is actually an affirmative defense to infringement. Though the NFL’s brief copyright warning asserts the NFL’s rights in the broadest way possible, it is not unlawful. There is no requirement that copyright owners educate the public on every way that they may utilize the work without permission or that any rights holder inform potential infringers of all possible defenses to infringement.

The leading case on fair use, Harper & Row, Publishers, Inc. v. National Enterprises, 471 U.S. 539 (1985), gives little specific guidance. It does firmly establish the principle that copying even a relatively small portion of a work may not be excusable under fair use. Specifically, taking the most significant part of the work, no matter how small in relation to the size of the entire work, and distributing that part to the public in a way that diminishes the market for the original, is not protected by fair use. Again, this is mushy, but, some cases are clear.

Last year, Electronic Frontier Foundation attorney Wendy Seltzer posted a small clip from an NFL game on YouTube. The clip posted was the part of the game containing the NFL’s verbal copyright warning. Seltzer posted it for the specific purpose of criticizing the NFL’s copyright warning. This is hardly commercial appropriation. It is the epitome of free speech. A negligible amount of NFL game footage appeared at the end of the warning; the footage was certainly not the “heart of the work.” The NFL promptly sent a takedown notice under the Digital Millennium Copyright Act (DMCA), claiming that unauthorized use of this clip was a violation of copyright. The clip was taken down, reposted by Seltzer, and taken down again at the NFL’s direction. The whole episode only served to support Seltzer’s position that the NFL overstates its rights under copyright and overreaches to enforce those rights.

Pictures, Descriptions, or Accounts of the Game

Fair use only applies to the copyrightable elements of a copyrighted work. Uncopyrightable elements are automatically in the public domain. Since the game itself is a collection of uncopyrightable elements, the NFL’s copyright is not violated by pictures taken by other “authors.” To be clear, most professional photographs of NFL games are created under license, and the NFL holds rights under the terms of each license. Football spectators may be surprised to find that they are also under a restrictive license, the terms of which are on the back of each football ticket. Any right the NFL has to restrict the publication of pictures of which the league is not the author does not arise under copyright. However, subject to the limitations of fair use, the NFL can restrict the display or reproduction of pictures that are part of its copyrighted footage.

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The NFL’s specific “descriptions or accounts of the game” are protected by copyright, but just barely. Some audio commentary and analysis is original enough that to copy it exactly and publicly display or perform it elsewhere would constitute infringement. However, there are only so many ways to say “Favre’s pass was intercepted by Webster.” There can be no protection under copyright where the idea and the expression of that idea merge in this way. The NFL’s copyright cannot operate to restrict private discussion about a game nor can it restrict commercial reporting of the results of a game or specific details of a game that can only be expressed in a limited number of ways. Again, this is not because of fair use, which only applies to copyrightable elements. This information is in the public domain.

At this point, it should go without saying that the statistical information utilized by “fantasy football” leagues is completely outside the realm of copyright. The battle over whether facts could be protected under copyright was fought long ago in International News Service v. Associated Press, 248 U.S. 215 (1918). Although the majority in that Supreme Court decision allowed a news organization a limited property right in the information it gathered, the decision was based on principles of unfair competition, not copyright. Justice Pitney was very clear that the “hot news exception,” which was intended to prevent one news organization from taking a free ride on the labors of another, did not expand the subject matter of copyright. Justice Brandeis, in his famous dissent, went even further to assert the principle that facts cannot be owned, stating that such information becomes, “after voluntary communication to others, free as the air to common use.”

More recently, the NFL and other professional leagues have attempted to make an end run around copyright law to create a proprietary right in statistics under “Right of Publicity.” The argument is that the statistics are a component of each player’s image, and therefore, each player has a right to prohibit or license all use of these statistics. In reality, if such a right were recognized, management of these rights would be licensed through the players association to the NFL as part of each collective bargaining agreement. In the simplest IP terms, the NFL would become an association of publicity rights holders, employed by trademark owners who combine to control the dissemination of sports related information.

So far the courts have rejected this strategy.