Copyright and car crashes: do sports have an author?

On the heels of the AmeriKat's post about the CJEU's decision about who may stream football matches, here is another tale of sports-related IP that asks just how far leagues may go in owning the events they produce.

The activity in question is the great sport of NASCAR which, to non-fans, looks an awful lot like noisy cars driving in circles. Kats and cars don't usually mix but, in late February, an usual event caused NASCAR to drive into the realm of the IPKat.

As numerous US media outlets reported, a NASCAR fan recorded a crash in which a car sent burning parts and tires bouncing into the stands where several people were rushed to hospital (the IPKat is relieved to say there were no fatalities). The fan's video of the incident soon appeared on YouTube where it became of great interest to racing enthusiasts, voyeurs and nearly everyone in between.

This cat doesn't understand humans'
fascination with cars

Here is where the IP comes in: the video disappeared after NASCAR filed a copyright claim with Google-owned YouTube. The vanishing video caused outrage and, in less than 24 hours, Google reinstated it and said NASCAR had no copyright rights in the video. Soon after, NASCAR declared that its issue was not with copyright but that instead it ried to remove the video out of concern for the families involved (Asks Merpel: "Does this mean "good taste" and "auto racing" can now appear together in the same sentence?")

After a good bit of media chest-thumping about internet freedom, the flap has largely blown over (see here for the whole story). Everyone is satisfied save for the IPKat whose whiskers are still twitching at the unresolved IP issues. The media glossed on these but did not get to the bottom of two major questions that affect fans of NASCAR, the Premier League or any other signficant sports operation: First, is a sports performance even subject to copyright at all? And, if not, can the league use contract or another means to enforce IP rights in fan videos all the same?

In the case of the car crash, some were quick to claim that the fan footage would be protected by America's fair use laws because the crash was unquestionably newsworthy. The IPKat nods in agreement but also asks if the conclusion is premature; fair use is only at issue if there has been a copyright infringement in the first place. And, here, what has been infringed? Unlike the CJEU case, the alleged infringer didn't make a copy of NASCAR's broadcast -- he made his own video. And what about the underlying performance? Are chaotic car movements or football passes even covered by copyright? A leading American appeals court suggests they are not. Here is why (warning: exotic sports imagery ahead) :

Sports events are not "authored" in any common sense of the word. There is, of course, at least at the professional level, considerable preparation for a game. However, the preparation is as much an expression of hope or faith as a determination of what will actually happen. Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script. Preparation may even cause mistakes to succeed, like the broken play in football that gains yardage because the opposition could not expect it. Athletic events may also result in wholly unanticipated occurrences, the most notable recent event being in a championship baseball game in which interference with a fly ball caused an umpire to signal erroneously a home run. National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2nd Cir. 1997)

(This Kat's IP mentor in Canada, Professor Richard Gold, notes that the situation of the crashing cars is somewhat akin to spontaneous improv comedy and, in Canada, it's unclear if copyright coverage would be available in either).

In light of  the above, NASCAR's copyright claim to the fan footage, irregardless of fair use, is tenuous at best. But this isn't the end of the story. One industrious reporter came across an actual NASCAR ticket and discovered printed on the back of it a notice that "NASCAR owns the rights to all images, sounds and data this .. event":

These terms are no surprise and are indeed (forgive the metaphor) "par for the course" at sports events where leagues and teams are anxious to control every piece of IP imaginable. Fans, in other words, are asked to assign any IP they produce at the game as part of the licensing conditions by which they attend in the first place.

The best use for cars - sunbathing

The IPKat's head is spinning at the possible upshot to the story: that the car crash video taker shot the video, immediately assigned the copyright to NASCAR and then relied on fair use news reporting to upload it to YouTube all the same. Or is there a flaw in the license that prevented the copyright of the crash to accrue to NASCAR in the first place? The IPKat will leave it to the blog's gentle readers to conclude if the conclusion might vary by jurisdiction. Meanwhile, Merpel wonders if sports leagues are playing a risky game in exhorting fans to use modern media tools like Twitter to share their experience -- while at the same time exerting IP rights over all they produce.