The Fair Use of Sports Media and the Value of a “Highlight”

November 11, 2015

Uncategorized

By Marshall Putnam – Thompson Rivers University 3L JD Student

On October 12th Twitter suspended two accounts associated with well-known sports blogs: Deadspin and SB Nation. These accounts, known for posting brief videos containing sports “highlights”, were suspended after Twitter received takedown notices from two notable parties: the NFL and XOS Digital. The notices stated the accounts were engaged in copyright infringement under the Digital Millennium Copyright Act for posting gif files and vines containing content from broadcasts of which the NFL and XOS Digital are rights holders.

Of course, copyright infringing behaviour of this nature is permissible should it fall within the scope of the “fair use” exception. Basically, the “fair use” exception permits the reproduction of copyright protected material in certain instances, such as criticism, education, commentary, or when the reproduction is considered “new”. In fact, the United-States Supreme Court has previously held that “fair use” justifies the reproduction of broadcasted material through the use of a VHS recording device, in what is known as the “Betamax” case (Sony Corp. of America v. Universal City Studios, Inc, 464 US 417 (1984)).

The value of referencing the Betamax case lies in the fact that it establishes a precedent whereby the United-States Supreme Court held the reproduction of an entire broadcast is permissible. Bearing this consideration in mind, one must wonder why the NFL/XOS Digital would argue the reproduction of a five second “highlight” on Twitter constitutes copyright infringing behaviour outside the scope of “fair use”, when it has been established it is lawful to record the entire sporting event. The answer I believe lies outside the realm of intellectual property rights, and entirely in the function and use of a “highlight”.

Sporting events are one of the few televised events to remain profitable in their ability to draw a “live” commercial audience. This is likely due to the fact that a sporting event cannot be pre-determined, and audience members often have a vested interest in the outcome. But it cannot be denied that the most exciting parts of a sporting event often occur in only a handful of moments. These moments have become known as the “highlights” of the event; the moments where a player behaves exceptionally, or the outcome of the game changes. “Highlights” function as a condensed version of the entire sporting event, with a unique marketing purpose.

Now consider how “highlights” are used in the larger commercial context. They are shown in a myriad of commercial broadcasts, such as news broadcasts as well as other sports commentary broadcasts. Further, they are later uploaded by the rights holders themselves onto their own Twitter accounts/other digital media platforms. In each of these examples the original rights holders likely profit off these uses of the “highlights”; they contract the rights for the news/sports commentary to use the “highlights”, and will draw viewers to their other digital media platforms thereby increasing advertisement revenue. This is largely because “highlights” capture a secondary audience of individuals who did not previously view the sporting event.

Is it outlandish to suggest the “highlights” of a sporting event have in-on-themselves a unique marketable value to the broadcast rights holders? The actions taken by the NFL and XOS Digital certainly suggest such a recognition. But the larger question remains: are SB Nation/Deadspin infringing copyrights by reproducing “highlights” on their Twitter accounts?

Ultimately, the answer likely lies in how the rights holders characterize the use of “highlights” by unauthorized parties. When SB Nation and Deadspin use their Twitter accounts to relay “highlights” to a larger audience, they are likely doing so for a commercial purpose. Consider the fact that SB Nation is owned by Vox Media, a company which (according to their website http://www.voxmedia.com) exists to distribute premium media content. Does not a news corporation exist to distribute media content, and is this not informed by an underlying commercial purpose? The comparison seems apt.

The “fair use” exception to copyright infringement will undoubtedly be used by SB Nation/Deadspin should the NFL/XOS Digital pursue a claim against them. But at the end of the day, these are all companies seeking to profit in the commercial world of sports through the use of “highlights”. I am unconvinced that SB Nation/Deadspin should benefit from the “fair use” exception to copyright infringement. The form of distribution and length of video should not detract from the commercial motive behind the Twitter publication of “highlights”.

 

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