A guide to rights protection at major sporting events: part 3 – be ready for surprises and maintain perspective

Published 16 September 2014 | Authored by: Nandan Kamath, Roshan Gopalakrishna, Nihal Zachariah

In Part 1 and Part 2 of this three part guide, Nandan Kamath, Roshan Gopalakrishna and Nihal Zachariah introduced rights protection programmes and looked at the first five steps: identifying core rights, contracting early with key parties, educating the public, actively monitoring for breaches, and developing intelligent enforcement strategies.

In the final part of this guide, the authors look at steps 6 and 7: being ready for surprises, and having a sense of humour.

 

Step 6 – Be ready for surprises

Those wishing to ambush events are often innovative and strategic and aim to exploit limitations and weaknesses in law and enforcement structures. Event owners must be constantly prepared for new and unusual ambushing tactics by exercising constant vigilance and not letting the guard down.

A flexible approach

In the course of an event, issues may arise from otherwise unforeseen spaces. In tackling such surprises, a flexible approach and a lucid framework of principles go a long way in combating the impact of such threats speedily and effectively. In the absence of these, the event owner may be like a deer in the headlights when a new ambush method arises.

For example, one of the challenges that emerged during the ICC Cricket World Cup 2011 was related to the use and commercialisation of event match footage by Indian television news channels. Though the ICC had issued News Access Regulations on the matter, nothing could have prepared the ICC for the manner in which match footage used by the channels (purportedly in the guise of journalistic fair dealing) was being displayed and commercialised with sponsorships and branded packaging, giving unassociated third parties an opportunity to directly associate with match content and indirectly with the tournament.

To make matters worse, a number of these third parties were direct competitors of official partners. Monitoring of the news broadcasts indicated the seriousness of the issue, legal process was begun (including withdrawal of accreditations and issue of cease and desist notices). When these did not have the desired result, the ICC was compelled to file a suit in the Delhi High Court against one of the major broadcasters in an attempt to establish the legal precedent.1

The Court upheld the restrictions in the Regulations, and further held that the news broadcaster could not use the name, image and logo of any advertiser in special sports news programmes carrying match footage. Such use of footage would not only mislead the audience but also give them an impression of the advertiser being a sponsor of or associated with the event, as this would be inconsistent with the idea of fair dealing. This view was reaffirmed by a Division Bench of the Delhi High Court on appeal.2

That these types of infringements would have been so ubiquitous would have been difficult to predict at the start of the event, but through legal process a new standard had been created and a grey area in the law had been conclusively determined, thereby closing off an area of apparent weakness.

Adapting to evolving social media

More recently, the short-form video sharing service, Vine, had its moment of controversy during the 2014 FIFA World Cup held in Brazil. While the lengths of the Vine videos are generally short (no more than ~6 seconds), there were instances in which users reproduced material audio-visual content that directly impacted the value of the official broadcaster’s exclusive rights. Key goals and other moment were made available as Vines on social media websites such as Twitter soon after these events occurred live. FIFA and its broadcast partners responded by issuing takedown notices and getting certain Vine accounts suspended.3

The advent of the latest European football league season has already witnessed the Premier League announcing a clamp down on Vine users recording Premier League footage and sharing such clips on social media sites.4 The Premier League declared that Vine users will be breaching the Premier League’s copyright by recording a live broadcast that is not meant to be accessible to the public via the internet in each relevant jurisdiction, and that it would work with Twitter to curtail such activity. Twitter has also issued a response, stating that, Vine users may not post content that violates third party rights.5

This response is unsurprising, considering the premium amounts being paid by broadcasters to show football, as well as the Premier League’s selling of near live mobile and internet rights to various media entities. It will be interesting to follow whether the Premier League and its RPP partners issue notices and communications to the infringers or whether they would impose a crackdown by association with Vine and Twitter.

These are just a few of the examples of unexpected and interesting challenges that one may face when protecting the valuable assets of a major sports event. If the event owner is vigilant, is clear about the core of rights it cares about and has consistent principles on its rights enforcement plan, it will be well placed to determine how best to respond to these new challenges.

 

Step 7 – Have a sense of humour

Finally, event owners must not forget that a sporting event is situated within its social milieux and will inevitably be a part of public conversations. It is important to retain a sense of balance and perspective while enforcing commercial rights. Having a good sense of humour involves an appreciation of the public’s right to enjoy and associate with the event.

Avoid over enforcement; keep perspective

In actual terms, this would mean the avoidance of hyper-technical enforcement that may crackdown on public engagement on various platforms, even if some of these acts are purportedly commercial in nature. Similarly, room must be made for parody, humour, social comment and criticism, even if this is at the expense of the event owners, the teams, the players and the event sponsors. There are many stakeholders involved and commercial prerogatives cannot always predominate.

It is equally fascinating to observe that the strictures enforced by event owners in relation to ambush marketing have themselves given rise to a genre of humorous comment. The viral spoof on YouTube just before the 2013 Super Bowl which depicts Samsung advertising executives in a meeting trying to ideate an advertising concept but get shot down each time they start to mention the event or one of the teams is a good example of this genre.

Facilitate enjoyment and avoid alienation

Event organisers should avoid getting flustered into knee-jerk reactions that could potentially alienate fans and other key stakeholders. They equally must have space to interact with and enjoy the event in a manner of their own choosing. The RPP should not attempt to create a totalitarian setting. After all, parody and comment form a meaningful role in cultural conversations, and opportunity must be provided for the event to become a part of enduring conversations and thereby leave a legacy.

Having a sense of humour restricts the potential for a notorious clampdown of free speech, expression and engagement. Further, it garners greater goodwill and support for the event organisers and the event itself. After all, it is difficult not to respect those willing to laugh at themselves!

 

Conclusion

Ultimately, the success of an event will be judged on many metrics, with the commerce of the event being just one of them. Central to a memorable event are the quality of the on-field competition, the fan experience, the impact on the host’s economy from the increased visibility/travel and the long-term legacy that the event leaves behind. That is not to say that the commercial prerogatives need not be prioritised. In fact, if they weren’t, the rest of the virtuous cycle of sport would stand little chance of sustained success.

However, over the last decade or two, questions have been raised as some event owners have gone from one host nation to another demanding blanket protection for an expansive bouquet of rights, with little respect for the existing laws and cultural mores of the host nation. This has come at a time when there is increasing evidence to suggest that the enormous economic costs to hosting major sporting events do not necessarily result in tangible and measurable long term benefits to the host country. In these circumstances, a successful RPP would have a rational and flexible approach that treats each case contextually and responsibly.

Malicious attempts at unlicensed free riding must be identified and tackled aggressively. However, it is also worth adopting an approach that co-opts the fan as a key stakeholder rather than painting him/her as a potential infringer. It is easy to forget that professional sport is nothing without its consumer, the fan. The support, interest and following of the general public, be they in the host nation or across the world, keep the gears of sport oiled and turning. Event owners and their partners must avoid losing the support of the public in the name of protecting the commerce of the game. A sensible RPP that is implemented responsibly can go a long way towards ensuring that these principles are upheld and the event’s objectives are met.

 

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About the Author

Nandan Kamath

Nandan Kamath

Nandan is Principal Lawyer at LawNK, based in Bangalore, India. His practice specialises in sports, technology and media laws, with clients ranging from international and national sports federations, to leagues, teams, sponsors and athletes.
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Roshan Gopalakrishna

Roshan Gopalakrishna

Roshan is Counsel (Sports & Entertainment) at LawNK, a Bangalore based niche law practice specializing in sports, intellectual property, media and information technology laws. In addition, Roshan is also the Chief Legal Counsel at Copyright Integrity International, a world leader in the protection of digital and broadcast rights. Roshan is a graduate of the National Law School of India University, Bangalore.

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Nihal Zachariah

Nihal Zachariah

Nihal is an Associate at LawNK, a Bangalore based niche law practice specializing in sports, intellectual property, media and information technology laws. He graduated from Gujarat National Law University in May 2013 and has gained experience in the areas of rights protection assistance and commercial contractual drafting for a range of the firm’s clients, in the sports industry and outside.

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