INTELLECTUAL PROPERTY ISSUES IN SPORTS LAW

Topics Covered

I. Common Law property right in the game

II. Copyright and Compulsory Licensing

III. Right of Publicity

Common Law Property Right in the Game

• KQV radio broadcasts play-by-play of Pirates game from outside Forbes Field

• Why do the Pirates care?• Is it a copyright infringement?– 17 USC §102(a): works “fixed in any tangible medium of

expression”

/2 Property Rights

• Is there a common law property right? Why?• Could Pirates sell exclusive rights to report the

game’s events to the Pittsburgh Post-Gazette?

/3 Property Rights

• “Hot News” exception from INS [445]:i) P generates news at some expense; ii) value is time sensitive; iii) D is free riding; iv) D competes w/ P; v) free riding will result in reduced incentives for P

Copyright and Compulsory Licensing

• Suppose I take a copyrighted broadcast, record it onto a DVD, and then watch later with friends; Have I infringed?

• Why isn’t Eastern Microwave’s re-transmission of Mets’ games a blatant copyright infringement?

• How would EMI get rights to Mets’ games if not via a compulsory license?

• Why would Congress want to provide compulsory licenses and exempt superstations from copyright infringment?

Passive Carrier Exception

• Can the Pirates block WTBS from showing Braves’ games from PNC Park?

• Why can’t the Pirates simply bar TBS from PNC Park?

• Does the public interest in supplying programs to viewers apply to MLB out-of-market games?

Right of Publicity

• Interests typically protected– players’ ability to reap reward of his endeavors– consumers misled by implied endorsement– avoid emotional harm from invasion of privacy

• As to the first, why not allow LeBron and Bill to collect from fans who use their names in a bar argument?

Right of Publicity /2

• Have MLB players shown that fantasy leagues violate their right of publicity under Missouri law?1) use name as a symbol of identity2) no consent3) obtain commercial advantage

• So why did MLBAM lose?

IP of Sports

• NFL rules effectively provide "copyright" protection (strict rules against stealing team playbooks) but no "trade secret" protection (players traded or cut are free to disclose as much of their former team's playbook as they can commit to memory) and no "patent" protection (clubs free to copy plays run by rivals).

• NASCAR rules likewise provide no "trade secret" protection, no employee secret protection (in many industries with the sort of secretive innovations done by racing teams, employees are barred for 2-5 years from going to a rival)

• NASCAR often changes rules to deny innovators the benefits of innovation, and yet innovation remains vibrant