Tag Archives: Deadspin

Fair Use, GIF’s, and the NFL

December 15, 2015

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By Kelly Melnyk – Thompson Rivers University JD Student

Reproduction of a broadcast in a private dwelling is not seen to infringe copyright. However, when the broadcast is seen to be made to the public, an infringement of copyright occurs. The problem facing the sports arena is the increased use of GIF’s, images and short clips pulled from a game that is shared among Internet users. These images can then be edited to be used for other purposes. For the NFL, use of GIF’s by other media outlets has created a challenge to fair use in copyright.

The American framework for fair use, 17 US Code § 107, is similar to that of the Canadian Copyright Act, RSC 1985, c C-42, s 29, fair dealing exception to copyright. Both pieces of legislation allow for copyrighted work to be reproduced for the purposes of criticism, news reporting, research, education, or parody and satire. In theory, a person could take a clip from a TV show and reproduce it without infringing copyright so long as the use is for one of the allowed purposes under the respective countries legislation.

The use of NFL GIF’s by Deadspin and SBNation demonstrates the challenge that new technology is creating for the realm of fair use in America. The GIF’s are small clips of a play from a league game and have been posted under the fair use policy, potentially falling under the category of news reporting. The NFL did not agree and requested that the Twitter accounts be closed and material taken down.

While this matter is still being decided, it raises an interesting question. If a two second GIF or 20 second vine highlighting a play is not considered to be fair use, then should not every sports reporter using a clip of the game also be receiving a take-down notice? There appears to be an arbitrary line being drawn between the use of a clip on a news broadcast and a GIF highlighting the same play.

The amount of revenue generated by broadcasting licenses is huge and obviously the NFL is not unaware of this. However, the use of copyrighted work for one of the purposes outlined in the legislation does not infringe copyright and showcasing an amazing play could easily find itself in the news reporting category of the American statute.

As the mediums used to deliver broadcasts increasingly diversify, the method in which news of plays, injuries, trades, or incidents on the field will also expand. It has become easier and much more commonplace for the average fan to take clips and images and disseminate them with rapid speed, just as Deadspin and SBNation have. Creating a “meme” or GIF from an exciting clip or image can be done by anyone with access to a computer, potentially making themselves a target of organizations like the NFL.

The highly public nature of professional sports has been greatly regulated by the private industry for the majority of the history of sport. However, as noted above, technology has been breaking down the walls that the private industry has built. The possibility of fans and alternative media outlets accessing the exclusive content is very much a reality, challenging the formal agreements for rights to broadcast or control the images. The use and dissemination of GIF’s by Deadspin and SBNation highlight the gap that the NFL thought they had filled by maintaining an official NFL Twitter account to control the use of GIF’s.

Shan Wang noted in her October 13 2015 article, “Fair use or copyright infringement? Deadspin and SB Nation get tossed off Twitter for NFL GIFs” that the NFL should look to the benefits created by further dissemination of a great play by other accounts and I would agree.

Creating greater awareness of something amazing that happened in the game last night through Deadspin could easily drive fans to find the full story through the traditional media sources that hold those exclusive rights. Fair-weather viewers may find themselves wanting to watch games more regularly to avoid missing the next great play. Rather than shutting down the site, organizations should build on the publicity being built and encourage a cooperative relationship with the alternative source. By working collaboratively, the NFL could benefit from reproductions and increase their audience from the followers of Deadspin and SBNation.

 

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

November 11, 2015

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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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