Digital and social media rights: Can the fans be forced to take down online goal videos and should they be?Alex Henderson, Jennifer Munn, David Blood
As the long, dark 33 days without top class football between the World Cup final and the start of the Premier League season finally ended on 16 August, football fans' excitement was arguably muted by an announcement from the Premier League that it was going to "clamp down on fans posting unofficial videos of goals online"1.
One of the noticeable online trends of the World Cup this summer was the saturation of unofficial clips of goals posted online by people simply watching games on their TV at home. If you were not fortunate enough to see James Rodriguez's stunning turn and volley for Colombia against Uruguay, no doubt you were able to catch a clip of it on your mobile moments later on Vine or Twitter.
Whilst the instant accessibility of content is no doubt a positive for the fan, it presents a problem for rights holders looking to (a) protect the inherent value in the rights they own; and (b) chase that elusive pot of gold at the end of the digital rights (as opposed to traditional broadcast) rainbow. The Premier League is in the middle of a three-year deal with News International worth £20 million which allows News International titles to present near-live clips of key moments in Premier League matches2. These clips are placed behind a pay wall by News International but, with consumers able to access free unofficial clips on social media platforms, the value of these rights to both News International and the Premier League is in danger of becoming significantly diluted. Immediate access to highlights could also affect the value of the Premier League's £3 billion broadcasting deals with Sky and BT.
With the possible consequences this issue could have, Dan Johnson, the Premier League's Director of Communications, speaking to the BBC's Newsbeat programme on 15 August 2014 said, "it's a breach of copyright and we would discourage fans from doing it, we're developing technologies…to curtail this kind of activity"3.
However, is posting video clips online that you record on your mobile device actually a breach of copyright law?
The law in England and Wales
The first important distinction to make when assessing whether posting clips of goals online is a breach of copyright is between clips recorded of footage being broadcast on television or via other media technologies and video recorded at the stadium.
Video recorded at the stadium: no copyright in a football match
It is long established case law in the UK that there is no property in a sporting event per se. It was Latham CJ that said in the Australian High Court case, Victoria Park Racing and Recreational Ground Ltd vs. Taylor (1937)4 (where the defendants erected scaffolding on a property adjacent to a racecourse from which they broadcast commentary of proceedings on the radio, and still the leading authority on the point today) that, "a 'spectacle' cannot be 'owned' in any ordinary sense of the word". Indeed, in the modern day equivalent of Victoria Park Racing, BBC vs. Talksport5 , where Talksport Radio broadcast commentary of the 2000 European Championships from a hotel room 'off-tube' by watching television coverage, whilst advertising their commentary as 'live'. The absence of any proprietary right in a sporting event resulted in the BBC's only cause of action being a claim of passing off based on the alleged misrepresentation of the commentary being 'live'. In relation to copyright, Talksport's radio broadcast was considered an independent work which had not infringed any content of the host feed.
This principle was affirmed in the most recent and important UK focused case dealing with the broadcasting of football matches in the UK in the Court of Justice of the European Union (CJEU) decision of 2011 in the joined cases Cases C-403/08 and C-429/08: Football Association Premier League Ltd & others vs. QC Leisure & Others / Karen Murphy vs. Media Protection Services Ltd6 (the FAPL Case). The CJEU’s judgment followed a referral from the UK High Court on a number of questions relating to the broadcasting of football matches in the UK. The CJEU held that "[The Premier League] cannot claim copyright in the Premier League matches themselves, as they cannot be classified as works". Member States are, however, permitted to accord other forms of protection to football matches, including:
"protection conferred upon those events by agreements concluded between the persons having the right to make the audio-visual content of the events available to the public and the persons who wish to broadcast that content to the public of their choice".
As there is no copyright in the live sporting action itself, arguably where a person films a goal on their mobile phone whilst in the stadium they may not be infringing anyone's copyright. The Premier League could potentially allege infringement of other elements contained in the recorded footage, for example inclusion of any advertising banners, player badges, Premier League logos, etc. However, such inclusion could be considered incidental under section 31 of the Copyright, Designs and Patents Act 1988 (CDPA)7 if it was mere "background".
So, how can the Premier League prevent fans recording clips of footage with their mobile devices whilst attending matches and posting them online? Due to the lack of copyright protection in a live sporting event, the basis for rights holders granting rights in such sporting events has always been the laws of contract, tort and real property that allows an organiser to claim control and possession of a ground. This has been referred to as the "keys to the gate" concept. In this case, the Premier League (as rights holder) could assert its ownership by imposing contractual restrictions (contained within the tickets’ express terms and conditions) on spectators. However, whilst Manchester United has recently banned spectators bringing tablets into Old Trafford, it seems unrealistic to ban fans bringing their smart phones to matches. The Premier League could, instead, ban the uploading of footage taken at the stadium through contractual ticketing restrictions but enforcing the restriction, particularly before any footage appears online, would appear difficult.
Copyright in the recorded footage
The situation is different however, where an individual records the goal from a screen (i.e. a broadcast of the event in question at the stadium or otherwise). In the FAPL case, the CJEU held that the Premier League could assert copyright in works contained within broadcasts (e.g. graphics such as the Premier League logo and music contained within the footage).
In addition, the broadcasters of the original footage can assert various rights in respect to their broadcasts, including: (a) the right of communication to the public (section 16(d) of the CDPA8); (b) fixation of their broadcasts under Article 7(2) of Directive 2006/115/EC9 (the Related Rights Directive); and (c) the right to reproduce fixations of their broadcasts under Article 2(e) of Directive 2001/29/EC10 (the InfoSoc Directive).
Where copyright subsists, anyone that exercises any of the "acts restricted by the copyright in the work" (i.e. copying, selling, broadcasting etc.) with respect to the “whole or any substantial part"of the work infringes copyright.11 It is arguable whether a 30-second clip of a 90-minute broadcast would be deemed substantial. However, the test of whether a clip is substantial is qualitative rather than quantitative. Due to the nature of a football match, it appears likely that a clip of a goal would be deemed substantial as it is one of the key features of the game and, therefore, something that has the potential to infringe copyright. However, this is not without doubt. For example, is a video clip of one goal substantial in a match in which seven goals are scored? Further, what about other sports? In an NBA basketball match it is common for more than 200 points to be scored - would a clip of one basket being scored be deemed substantial notwithstanding it is still the key feature of the game?
Where an individual films a goal from a broadcast and uploads this clip on to Vine or Twitter they may, therefore, be infringing copyright both in the original broadcast and works contained within the broadcast. However, although the Premier League can legitimately refer to the FAPL Case and claim that unauthorised videos posted online containing such copyright works is a breach of that copyright, fans could equally point towards certain copyright exceptions and legal defences that permit them to post videos online.
Copyright exceptions for news reporting and quotation
Section 30 of the CDPA12 provides for a news reporting fair dealing exception which may be of use to individuals wishing to upload clips of goals on Vine, Twitter or similar. This exception has two applicable requirements: (a) the news must be current and (b) the dealing must be fair. Sufficient acknowledgment of the original source should also be included, although this is not necessarily required where this is impossible for reasons of practicality or otherwise. Whether the dealing is fair will depend on the individual circumstances, however, we would suggest that merely uploading a goal from a 90-minute match may be considered fair dealing for the purposes of news reporting as the goal is likely to be the news itself. However, this may not be the case where videos are uploaded for direct commercial purposes. The problem is that these lines become blurred when accounts have large numbers of "friends" or followers to the extent that individuals are able to monetise their online activities.
The new copyright exceptions of "quotation" included within section 30 of the CDPA13 and "parody" in section 30A of the CDPA14, introduced on 1 October 201415, could provide an individual with added defences to breach of copyright. These exceptions could apply by either arguing that the goal footage is a quotation of the copyrighted work (the broadcast)or that the user has included the goal footage as part of a parody, providing, in both cases, that there was fair dealing with the work and such use was non-commercial. The same issue in relation to monetisation of online activities apply for these exceptions.
Therefore, despite the Premier League's strong stance and unequivocal statements, can it legally require the take down of video clips online? Whilst, the Premier League could provide arguments that its copyright is being infringed, there is at least some chance that fans uploading clips of goals from current football matches may well be able to successfully rely upon the news reporting fair dealing exception. This is particularly so as the courts must interpret the section 30 defence taking into account the freedom of expression provisions of Article 10 of the European Convention of Human Rights.
The position in the US
With reported annual domestic sports broadcast deals of US$5-6 billion for the NFL16, US$1.5 billion for the MLB17 and US$2 billion for the next NBA deal18, the US premium sports content market is huge. So what protection does US law provide for rights holders to protect these revenues?
Section 102(6) of the Copyright Act of 1976 (CA 1976)19 makes it clear that copyright protections are afforded to recorded broadcasts depicting or describing live events. Further, the definition of "work" specifically, introduced the concept of “fixation” (i.e. the fixing of an original work in a tangible medium) thereby including live broadcasts that are reaching the public in unfixed form but are simultaneously being recorded. Through these changes to US copyright law, US Congress clearly intended the broadcasts of sporting events to be afforded the protection of copyright laws.
Fair use defence
However, US Copyright law also provides a "fair use" defence to breach of copyright (section 107 of the CA 197620) in the case of news reporting. In determining whether such use is fair, US courts will consider (a) the purpose and character of the use (including whether it is commercial in nature); (b) the nature of the work; (c) the substantiality of the portion of the copyrighted work used; and (d) the effect of such use upon the potential value of the copyrighted work. In the case of uploading highlights of sporting events, this final additional factor, not necessarily considered under English law may render any fair use defence under US law negligible.
No copyright in the sports event itself
Even though broadcasts of sports enjoy the protection of copyright law, similar to in the UK, such protection does not extend to the underlying competition events themselves. In one key case, the NBA asserted copyright infringement claims against Motorola, who manufactured and promoted “SportsTrax” handheld pagers that provided real-time information about professional basketball games. In National Basketball Association v. Motorola, Inc., the Second Circuit court of appeals held that copyright protection that applied to broadcasts of sporting events did not apply to the underlying events themselves.
Similarly, copyright protections do not extend to recordings or descriptions of a sport event. However, the leagues in the US have found other means to secure protection of such events via the common law doctrine of misappropriation and tort of unfair competition. The foundation case for development of such tort is International News Service v. Associated Press, in which the Supreme Court draws a line between infringement of intellectual property rights and interference with business practices. Mr Justice Pitney's reasoning in that case was drawn from underlying equitable principles, being "that he who has fairly paid the price should have the beneficial use of the property" and that "misappropriation of it by a competitor is unfair competition because [it is] contrary to good conscience". While that case did not relate to broadcasts or recording of sporting events, the reasoning has been applied to various cases related to sporting events such as Pittsburgh Athletic Co. v. KQV Broadcasting Co.
KQV is a local radio station which paid observers to watch the Pittsburgh Pirates games from a location leased by KQV outside the stadium with a view of the field over the stadium enclosures. KQV then broadcasted play-by-play descriptions of such games on its radio station without a licence from the team or league. The Pittsburgh Pirates sued, claiming that KQV was violating its exclusive radio broadcasting arrangement with NBC. The Court ruled against KQV on the basis of International News Service v. Associated Press noting:
"The right, title and interest in and to the baseball games played within the parks of members of the National League, including the property right in, and the sole right of, disseminating or publishing or selling, or licensing the right to disseminate, news, reports, descriptions, or accounts of games played in such parks, during the playing thereof, is vested exclusively in such members."
Therefore, despite very similar facts to Victoria Park Racing and Recreational Ground Ltd vs. Taylor and more recently BBC vs. Talksport, the US Courts found in favour of the rights holder based on quasi-property rights recognised in the United States as part of the doctrine of commercial misappropriation. Whilst KQV cited the Victoria Park Racing case, the Court held that it was not relevant on the basis that an equivalent doctrine of unfair competition is not recognised in English common law. Indeed, the High Court, in BBC vs. Talksport could not find any conduct of Talksport that contained all the elements of an existing cause of action under English law. While some more recent cases have whittled down the edges of the full potential impact of KQV and other similar cases on US law, the general doctrine of misappropriation and unfair competition applied in such cases is still applicable today.
Again, similarly to English law, professional sports leagues and teams are private clubs and the arenas are private venues allowing them to employ the "keys to the gate" concept. As such, the leagues and teams are allowed to make private rules that can govern what devices are permitted to enter the stadium and who is permitted to telecast the games (or clips or descriptions thereof).
However, even though the leagues and teams may have the authority to prohibit cameras and smart phones from entering the stadiums, they are clearly conflicted with the need to balance such protective efforts against creating an 'awesome fan experience' in the new millennium. One obvious and recent example of this is the massive Wi-Fi build-out that is being included in stadiums around the United States, particularly newly built stadiums. A prime example is the new Levi's Stadium (home of the San Francisco 49ers), which can reportedly support 40,000 fans simultaneously live-streaming content over the internet while sitting in their seats21. Furthermore, interestingly, upload speeds are reported to be prioritised over download speed in order to better facilitate the next generation mobile internet users who are more interested in using the internet for social sharing of their experience (and a few game moments as well), than downloading stats, information and even video22.
English law and US law - a comparison
No copyright in a 'spectacle' (Victoria Park Racing and Recreational Ground Ltd vs. Taylor)
Cannot claim copyright in…matches themselves (FAPL & others vs. QC Leisure & Others / Karen Murphy vs. Media Protection Services Ltd)
Copyright protection …does not apply to the underlying events themselves (National Basketball Association v. Motorola, Inc)
Rights in a sporting event not protected by the law of equity (Victoria Park Racing and Recreational Ground Ltd vs. Taylor)
Tort of misappropriation and unfair competition (International News Service v. Associated Press)
Copyright can be fixed in broadcasts (section 16(d) of the CDPA; Article 7(2) of the Related Rights Directive; and Article 2(e) of the InfoSoc Directive
Copyright can be fixed in audio-visual works (section 102(6) of the CA 1976)
Possible fair dealing defence (section 30 of CDPA)
Possible fair use defence (section 107 of the CA 1976) where potential impact on value of the copyrighted work is considered
"Keys to the gate" and contractual protections through ticketing conditions
"Keys to the gate" and contractual protections through ticketing conditions
How do you maximise the value of digital and social media rights?
It is somewhat ironic that although US law, through its tort of unfair competition, arguably provides greater protection for the owners of media rights the approach taken by the major US professional leagues is to promote and facilitate the posting of content online. The emphasis is on the "fan experience", and promoting social media interaction, even in stadia. In addition, rights holders in the US seem to centrally control their digital packages. The NBA is recognised as a market leader in digital and social media reach, it regularly uses its official websites and apps, its YouTube channel and its out-of-market sports package, "NBA League Pass", to provide short form video to its fans. The NFL has followed suit, launching its "NFL Now" app which provides fans with news clips, highlights, archive programming and bespoke content tailored to the viewer's profile.
For a number of years now sports rights holders and other content owners have been seeking ways of monetising their digital and social media rights. However, for a number of reasons, including those discussed above, rights holders have found it challenging to crystallise these rights and package them in a way that is attractive and can be monetised. The recorded music industry made the mistake of trying to protect its digital assets by prosecuting its fans when digital music became widely available. Interestingly though, one aspect of the music industry that continues to thrive is live events. It appears the easy and cheap availability of recorded music has driven more fans to pay premiums to attend live shows. Sports rights holders, in particular, should take note of this phenomenon.
Although the Premier League has broken new ground in the UK with its £20 million clips deal with News International, this still pales into insignificance in light of its £3 billion traditional broadcasting deals. Rather than chasing the elusive pot of digital rights gold through the sale of its digital and social media assets as a standalone product, rights holders and content owners should consider using digital and social media as an engagement tool designed to drive the more traditional revenue models.
For example, clips of highlights can drive viewers to consume more premium content and attend more live events. Increased interaction and brand recognition (from countless 'retweets' and 'hits') could not only makes the traditional rights packages more valuable but could also drive sponsorship deals and enhance partnerships with valuable corporate partners. Furthermore, central ownership of digital and social media assets can also provide rights holders and content owners with an incredibly valuable asset - data. Rights holders have spent the last decade trying to monetise digital, perhaps now is the time to change tact and put the consumer experience first.
Can the Premier League take down online goal videos and should it?
The Premier League could argue that posting clips online is an infringement of their intellectual property rights and demand all incidences of such infringement be taken down. However, there are equally strong arguments that defences to such copyright infringement could apply, providing, of course, that the posting of such clips could be seen as fair dealing.
However, we would suggest that, given the inherent difficulties of enforcing any possible IP infringement and the threat of challenges, the Premier League would be best served maximising the value (as opposed to the revenue) of its digital rights and, in doing so, driving their more traditional revenue streams.
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- Tags: American Football | Baseball | Basketball | Copyright | Copyright Act of 1976 | Designs and Patents Act 1988 | European Court of Justice | Football | Major League Baseball (MLB) | National Basketball Association (NBA) | National Football League (NFL) | Premier League | Social Media | United Kingdom (UK) | United States of America (USA) | World Cup
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About the Author
Alex is a commercial lawyer at Dentons with a particular emphasis on the media and sport sector. Alex has worked on media rights related matters for a number of clients including, the England and Wales Cricket Board and Chelsea Football Club as well on various commercial arrangements in sports such as football, cricket and formula 1.
Jennifer is a Lawyer in Dentons' Technology, Media and Telecommunications (TMT) practice, with a focus on intellectual property and commercial matters. She advises across a range of intellectual property rights and has experience in both contentious and non-contentious work.
David is a partner in Dentons' Corporate practice based in Los Angeles, with more than 15 years of experience negotiating corporate and complex commercial transactions, particularly in which media, sports, technology and intellectual property are key assets. David has broad experience representing US, international and multinational clients with respect to matters such as joint ventures, private equity investments, licensing, distribution, mergers and acquisitions and complex commercial transactions. Internationally, he has counselled companies operating throughout Latin America, Europe, the Middle East and Asia.