This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.
In a December 2012 decision, a federal district court in Washington State held thata company's numerical "player grades" assigned to college football players to reflect their likelihood of success in the National Football League were copyrightable, but also that the republication of these grades by a sportswriter covering the NFL draft was fair use. See National Football Scouting Inc. v. Rang, 105 USPQ2d 1074 (W.D. Wash. 2012).
Plaintiff National Football Scouting formulated the grades as part of detailed and confidential reports on prospective NFL players that it sold to NFL teams on a subscription basis for $75,000 a year. Defendant Robert Rang is a high school teacher who publishes articles on a publicly available website owned by an entity called Sports Xchange. Rang's articles about NFL players disclosed some of the player grades developed by NFL Scouting.
In reaching the first part of its holding–that the player grades are protected by copyright–the court held that the "numeric expression of a professional opinion can be copyrightable," citing prior decisions that had determined that valuations and predictions based upon the compilation of data from a number of sources and the weighing of a variety of factors may be protected. Other courts have found copyright protection in analogous circumstances. For example, the Second Circuit upheld copyright protection for projections of used car prices. See CCC Information Services, Inc. v. McLean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994). One could take issue with the Rang court's holding in that regard, given the well-established rule of copyright law that single words and short phrases cannot be copyrighted. Under that principle, should a grade like a B+ or an 85 be protected simply because the letter or number refers to more detailed expression? Clearly, the purveyor of such a grade could not prevent another from using it in a different context.
In analyzing whether the defendant's use was fair, the court applied the "non-exclusive" four-factor test set forth in the Copyright Act. In the most significant part of its ruling, the court concluded that the first prong of the test, the purpose and character of the use, favored Rang. The court purported to apply the standard set forth by the Supreme Court and other courts in which a central inquiry is whether the new use is "transformative" in that it "adds something new, with a further purpose of different character, altering the first with new expression, meaning or message." Despite the fact that the grades were published for the same basic purpose as the original–as part of a written evaluation providing information about a player's prospective ability as an NFL player–the court found that Rang's use was "highly transformative" because it was accompanied by his own original thoughts and commentary about the players.
With respect to the other factors, the court ruled that the fact that National Football Scouting's reports were unpublished favored the plaintiff and that the very small amount of copying (although it took the most valuable part of the original) slightly favored the defendant. Turning to the key fourth factor–the effect of the infringement on the market for the original–the court noted that the plaintiff's scouting reports are sold for a high price to a limited number of professional football teams and the defendant's articles are made available to the general public. Accordingly, the court concluded that the defendant's use of the player grades did not damage the value of the plaintiff's scouting reports.
Whether or not the case was correctly decided, the application of the "transformative" test to the facts of this case is interesting. The test was first articulated by the Supreme Court in the music parody case Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), and works best in situations where the later use purportedly makes some comment about the earlier use or where the two uses serve very different functions. Now, more and more courts are focusing their analysis on whether the second use is transformative even in situations such as the one in the Rang case, where a small amount of copyrightable expression is used in another publication serving essentially the same purpose (i.e., providing evaluations of potential NFL players). The court could have concluded that the use was fair by focusing on the small amount of copyrighted material taken and the absence of market harm without having to reach the conclusion that Rang's use was highly transformative.
I give the Court a C+ on the explication of its holding, but concede that others are free to republish this grade.
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