NFL: “No Footage League” or Prudent Protector of Its Intellectual Property Rights?

COPYRIGHT

With the rise of social media, we are constantly reminded of how quickly users can access, create, and pass along content. Outlets such as Twitter, Facebook, Instagram, Vine, and Periscope provide readily accessible platforms for users to upload, send out, and view photographs, videos, and links to news stories. As a consequence, the risk of unauthorized use of copyrighted works is extremely high.

Unlicensed, third-party dissemination of sports footage and highlights is one area that has experienced considerable activity. Last month, the NFL notably sought to enforce its copyright interests in highlights of its games by seeking to prevent certain Twitter accounts from posting GIFs, Vines, and other short excerpts of game highlights. While this may not be a particularly popular tactic, it’s an understandable one, as the NFL’s rights in its game footage and content are its single largest asset, as evidenced by the most recent TV contracts. FOX, CBS, NBC, ESPN, and DirecTV paid the NFL a combined estimated $6 billion for the rights to air NFL games for just the 2014 season.[1]

On October 12, the NFL sent DMCA takedown notices to Twitter, requesting that it “act expeditiously to disable access to the unauthorized videos being displayed and/or disseminated” by the popular sports-related accounts @Deadspin and @SBNationGIF. The NFL is not alone. The UFC filed similar takedown notices against Deadspin. The Big XII and Southeastern Conferences sent notices to Twitter regarding SB Nation. The MLB is also known for vigorously monitoring unauthorized usage of its content and demanding that such usage be removed or suspended. Deadspin and SB Nation have amassed large followings due in large part to their posting of these GIFs and Vines of highlights and short videos. Twitter responded to these takedown notices by suspending the two accounts, not just ordering takedowns of the footage in question. Twitter eventually reactivated both accounts. The terms of reactivation are unclear, but as recently as November 1, both accounts have resumed posting footage of NFL games.

Conversely, the NBA has long taken the opposite position that it will not seek to enforce or shut down these types of uses of its intellectual property. At last year’s MIT Sloan Sports Analytics Conference, Adam Silver reaffirmed the NBA’s approach to the issue, stating that the NBA is “incredibly protective” of its live game rights, but that it views the use of highlights as marketing.[2] Mike Bass, the NBA’s executive VP of Communications, echoed Commissioner’s Silver’s statements in the wake of the NFL’s recent efforts, stating that the sharing of “highlights via social media is a great way to drive interest and excitement in the NBA.”[3] As evidenced by the mammoth television rights deal recently entered into the NBA, this stance does not seem to be adversely affecting the NBA’s TV viewership, which drives the value of a league’s television rights. The NBA’s new TV deal with ESPN and TNT, which goes into effect during the 2016-17 season, is for nine years and a total of $24 billion, or an average of approximately $2.67 billion per season.[4]

Much has been written about whether or not such usage of these videos constitutes fair use. This question seems ripe for adjudication. Deadspin, SBNationGIF, and other posters of this content have long pointed to the fair-use doctrine as their legal grounds for posting the material, namely that these six-second video are a small portion of the copyrighted work as a whole and that they have virtually no effect on the potential market for the copyrighted work. Enforcers of the copyright interest argue that the material falls outside the fair-use doctrine because it is often used for commercial purposes and sometimes even accompanied with a signature tag of one of the posters.

An entity or individual will eventually take to the courts to challenge whether this type usage of copyrighted content constitutes fair use, especially in light of the Ninth Circuit’s decision in Lenz v. Universal Music Corp., Case Nos. 13-16106, -16107, 2015 U.S. App.. LEXIS 16308 (9th Cir. Sept. 14, 2105), i.e., the “dancing baby” case, that a copyright owner must consider fair use before issuing a DMCA takedown notice or face liability under 17 U.S.C. § 517(f) for any damages, including costs and attorneys’ fees, incurred by the alleged infringer. The Ninth Circuit recommended that copyright holders develop and use “computer algorithms” to process content and meet the requirement to consider fair use. Id. at *22. Even though the development and implementation of such computer programs and algorithms are much more prevalent today, it is a stretch to think that all potentially aggrieved copyright holders possess the resources and capacity to develop effective tools to ensure that they comply with this fair-use-consideration requirement. Despite the suggestions of the Ninth Circuit, decisions regarding how far a copyright holder needs to go to take fair use into consideration before issuing a DMCA takedown notice will likely follow.

The Lenz holding provides an obvious incentive for an accused infringer to challenge such an attempted takedown. Assuming, though, for the sake of discussion, that a court finds that at least some of this type of use is not within the bounds of fair use, has the NBA or any other organization forfeited any of its rights by allowing others to freely post highlights and even longer excerpts of its games? Specifically, does laches, or any other similar doctrine, work to preclude the NBA from enforcing its rights with regard to a particular user or particular piece of content in the future?[5] On the other hand, if the court sides with the users of third-party posters of the content, how far can they push their fair-use rights? There is a broad spectrum between a six-second snippet of a game and full, live-game rights. Another issue that would appear to be in line for determination is how far along this spectrum fair use falls.

The resolution of these questions and how vigorously the various sports organizations go about enforcing their rights has obvious financial ramifications but could also have an effect on public relations and how the organizations are perceived. 

 

[1] Rocco, Matthew. “TV Deals Boost NFL Revenue to New Record.” www.foxbusiness.com. 21 July 2015.

[2] Maese, Rick and Cindy Boren. “Sports video clips are no ubiquitous on social media. Can the NFL put the genie back in the bottle?” The Washington Post. Washington Post, 13 October 2015.

[3] Id.

[4] Lombardo, John and John Ourand. “ESPN, Turner Will Pay a Combined $24B in New Nine-Year NBA Media Rights Deal.” www.sportsbusinessdaily.com. 6 October 2014.

[5] The Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 188 L. Ed. 2d 979 (2014), appears to cast doubt on the applicability of the defense of laches ever in the copyright infringement context. The holding there that laches cannot be invoked to preclude adjudication of a claim for damages brought with the three-year window. As to equitable relief, in extraordinary circumstances, laches may bar at the very threshold the particular relief requested by the plaintiff. And a plaintiff’s delay can always be brought to bear at the remedial stage, in determining appropriate injunctive relief, and is assessing the “profits of the infringer … attributable to the infringement.” Even if the doctrine of laches is determined to be irrelevant as far as damages are concerned, there could still be some applicability in the context of equitable relief sought by the copyright holder, e.g. injunctions.

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