Tag Archives: Kelly Melnyk

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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Lessons Learned for Maintaining a Lengthy Relationship

October 13, 2015

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By Kelly Melnyk – Thompson Rivers University 3L JD Student

Earlier this year, it was announced that the Canadian Football League Players Association (CFLPA) had severed its relationship with Edmonton lawyer, Ed Molstad, after nearly 40 years. The change came after a round of negotiations in 2014 that left some players questioning the abilities of Mr. Molstad. It had also been alleged that Mr. Molstad had been overcharging the Union for services during his tenure as counsel, although that complaint was dismissed by the Law Society of Alberta.

The move by the CFLPA is one that should draw the attention of both Players Associations and young lawyers seeking to break into the field of sports law. These two sides are interrelated in that there is a certain level of responsibility that each party needs to accept. The elected representatives of the CFLPA and counsel both owe a duty to the members of the Union and so it becomes a matter of ensuring that the relationship best embodies this principle.

As a lawyer, being criticized for ones abilities and having their ethics questioned publicly by their own client can shake the willingness to represent said client to the best of their ability. However, representing your client’s interests even when they misbehave is an essential skill to maintain or restore the relationship, a skill that many young lawyers aspiring for work in the CFL should develop.

In a relationship that had lasted longer than many marriages, the CFLPA and Mr. Molstad found themselves in a situation that revolved around the question, “What happens when the relationship appears unable to sustain the duty?” The questions concerned Mr. Molstad’s abilities but also perceptions of overcharging appeared to have destroyed the trust in the relationship between counsel and client, making it impossible to continue on. Despite the concerns over performance and costs, the CFLPA issued a warm statement over Mr. Molstad’s contribution to the sport and the CFLPA over the last 40 years.

One cannot help but wonder if nearly 40 years of working together brought a level of complacency on both sides. In the complaint to the Law Society, the practice of charging a flat fee of $400,000 to the Union, plus a further $200,000 was found to be exorbitant by the complainant players. Mr. Molstad demonstrated that the hourly fee for his services would have amounted to nearly $1 million for that same year. This seemed to further enflame the complainants, demanding an explanation to some of the line items in the billings.

As up and coming lawyers, we are taught to ensure that our clients know what we are billing for and to track our hours. Using vague descriptors, such as “review of files” as alleged in the complaint, do not aid in maintaining a trusting relationship with the client. A senior lawyer ought to have kept better records of for the file but does this constitute a breach of the ethical obligations? The law society did not seem to think so. When representing some 500 players, the accountability is to be there on both the part of the lawyer and the CFLPA executive.

Providing a detailed accounting of services rendered for a large sports organization that can justify the cost is just one skill that a lawyer should have in order to build and maintain the client relationship. The Union bears responsibility for reviewing the bill and agreeing with the charges before proceeding with payment for the services. This was supported by the law society and is the practice in many industries. Rather than having a few members launch a complaint with the law society against counsel, the CFLPA should have pursued the concerns internally so as to avoid the public concerns that arise out of such allegations.

In any relationship, whether as the lawyer or the client, it is necessary to ensure that the communication is open to avoid a total breakdown of the relationship. Lawyers looking to step into roles with players associations should view the outcome between the CFLPA and Mr. Molstad as a cautionary tale on the duty and obligations to the client. Seemingly simple steps such as clear billing and communication allow lawyers and player’s unions to build and maintain trust. Had these steps been followed by Mr.Molstad and the CFLPA the relationship could have been extended for another ten years or more.

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