I might be the only person on earth who became interested in the Mayweather-Pacquiao fight yesterday, long after it finished. Don't be confused though, as I couldn't care less about boxing. My interested was piqued by the piracy articles that spun out of the fight coverage in the media yesterday. The New Yorker declared, "Pirates Crash the Mayweather-Pacquiao Fight." CNN said "Mayweather-Pacquiao Fight Plagued by Piracy on Periscope, Meerkat." NBC asked "Mayweather and Pacquiao: The Perfect Storm for Piracy?" Even the BBC jumped in with "Boxing Broadcasters Battle Periscope's Pirates."
The New Yorker's article featured the photo below, seemingly as evidence of its sensational claim:
If you are familiar with Meerkat and Periscope, skip to the next paragraph. If not, these services allow users to broadcast nearly-live video from mobile phones. Rather than simply recording your kid's little league game, these apps allow you to live broadcast it so grandma and grandpa can see the play-by-play live.
Has the world gone mad? Does everyone really think there is something wrong with taking video of a boxing match and broadcasting it to your friends? Reading the articles made me want to pull my hair out.
Mayweather-Pacquiao: boring, yes. Illegal-piracy: not so clear. The context for piracy (as implied by the Napster reference) is copyright infringement. When someone broadcasts the original sound recording of a person's song, you have slam dunk copyright infringement/piracy. This is because sound recordings are protected by the U.S. Copyright Act and international copyright treaties as works of authorship.
So why do I say "not so clear"?
- Rebroadcasting the televised boxing match is piracy
- Broadcasting the boxing match from your phone in the arena is not piracy.
No matter how much money society wastes on boxing, the underlying match itself is not a work of authorship and is not entitled to copyright protection. If you don't believe me, I have provided references at the bottom of this post.
The odd thing is that the only reason HBO and Showtime have any copyright rights at all in their own broadcast of the fight is because of the thin layer of artistry they create through unique camera angles and orchestrated shots of the fight. But the guy sitting in the stands on fight day recording the fight for his friends is not a pirate.
Before you begin self-broadcasting every live sporting event in your area, a couple precautions:
- The music being played in the background at a sporting event is copyright protected, so you can't have that in the background on your periscope feed. You can certainly replace all that noise with your own commentary though!
- The trademarks displayed around the arena belong to the owners of those trademarks. Although it is unlikely that they would care, you probably shouldn't include their trademarks in your broadcast.
- Any scripted performances before or after the event (or during halftime for other sports) are entitled to copyright protection.
- Be careful before profiting from the video feed. You could run into rights of publicity, etc., and other state law issues.
Here are some useful references before we just let the national media rewrite the Copyright Act.
- Nimmer on Copyright § 2.09[F]
- National Basketball Association v. Motorola, 105 F.3d 841 (2d Cir. 1997)
- National Ass'n of Broadcasters v. Copyright Royalty Tribunal, 675 F.2d 367, 377 & n.16 (D.C. Cir. 1982)
- Note there is one case that gets cited sometimes in support of a copyright in athletic events: Baltimore Orioles, Inc. v. Major League Baseball Players Asso., 805 F.2d 663 (7th Cir. 1986), cert. denied, 480 U.S. 941, 107 S. Ct. 1593, 94 L. Ed. 2d 782 (1987). The dispute there was over the broadcast though, and not the underlying event. I think that case is kind of a mess.
BTW, Periscope is a terrific trademark for this service – hats off to the folks at Twitter on that one.
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