FAN PHOTOS AND VIDEOS ON SOCIAL MEDIA

WHO OWNS WHAT AND WHERE

Basic Areas of Legal Protection

!  Licenses – tickets, websites, etc.

!  Copyright

!  Anti-bootlegging statutes

!  Misappropriation of Hot Topics

!  Rights of Publicity

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Topic Coverage

!  Pictures

!  Recording

!  Posting on Social Media

!  Streaming

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Illustrative Situations

!  Bob takes a picture of the performance and (i) posts it on YouTube, (ii) copies and frames it and sells it for a profit, or (iii) uses/alters it to ridicule the performance

!  Sarah video tapes a concert and (i) posts it on YouTube, (ii) copies and frames it and sells it for a profit, or (iii) uses/alters it to ridicule the performance

!  Steve video tapes a portion of a sporting event and (i) posts it on YouTube, (ii) makes copies and sells it for a profit, or (iii) uses/alters it to ridicule the performance

!  Sally streams a live event and makes it accessible on the internet through her blog or website.

!  Sandy attends a sporting event and provides the score and the play by play description of the game as it occurs.

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License

!  Reasonable limitations permitted

!  Contractual restrictions can be imposed by contract to provide legal protection against independent fixation of a performers’ rendition of a work

!  Stating a prohibition against recoding or taking photographs on the admissions ticket as a condition of access to or attendance at the performance.

!  Issues about contract vs. Copyright

!  Restrictions imposed by broadcasters (sporting events) and music publishers on venues to protect dissemination of material

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Copyright Protection– What is Copyright?

!  Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

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Copyright Protection – Fixation Requirement

!  A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

!  To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent dissemination of material

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Copyright Protection – What Can be Protected

by Copyright? !  musical works, including any accompanying

words

!  dramatic works, including any accompanying music

!  motion pictures and other audiovisual works

!  sound recordings

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Copyright Protection – What are the Exclusive Rights of

Copyright Owners?

!  reproduction rights – extends to all categories of copyrightable works

!  public distribution right – extends to all categories of copyrightable works

!  public performance rights – applies to musical, dramatic, and AV works

!  public display – applies to musical, dramatic, and AV works

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Copyright Protection – Issues in its Application to

Sporting Events

!  What is fixed – the broadcast o  The transmission of sounds or images is deemed

fixed if the fixation of the work is made simultaneously with its transmission.

o  NFL v. McBee & Bruno’s Inc., 792 F2d 726 (8th Cir. 1986) where it was held that a live broadcast of a football game was fixed because it was videotaped at the same time that it was transmitted to viewers.

o  Telecasts of sport events are copyrightable as independent creations that reflect the creativity in the use of such parameters as camera angles and shot selections. Baltimore Orioles, Inc. v. MLB Players Association, 805 F.2d 663 (7th Cir. 1986).

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Copyright Protection – Issues in its Application to Sporting Events (Cont’d)

!  What does broadcast fixation cover.

o The copyright of the telecast of a live event does not give the copyright owner any exclusive rights of the event itself. Other photographs and videos of the performance do not infringe the broadcast copyright even if it embodies events shown in the protected

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Copyright Protection – Issues in its Application to Sporting Events (Cont’d)

!  Is the action on the field fixed or copyrightable.

o  Improvised movements are not fixed

o  The underlying sporting event athletic events are not copyrightable because (i) they do not fall within the subject matter of copyright protection, (ii) they do not constitute "original works of authorship". There is no “authorship.”

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Copyright Protection Issues in its Application to music

concerts

!  What is fixed –the musical composition

!  Is the performance fixed or copyrightable – simultaneous fixation

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Anti-Bootlegging Statutes – Live Musical Events

!  Federal Anti-Bootlegging Statute 17 U.S.C. §1101 provides that anyone who, without the consent of the performer or performers, does either of the following will be subject to the same remedies as an infringer of a copyright

o  distributes or offers to distribute, sells or offers to sell any copy or phonorecord containing the sounds or sounds and images of a live musical performance, or

o  transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance

!  The provisions of this statute apply even if the work was not “fixed” by the performer. It also does not include a time element limiting its availability (e.g., public domain)

!  Constitutional issues under the copyright and commerce clause of the US Constitution 14

Anti-Bootlegging Statutes – Impact on Other Laws

!  Although all of the remedies available under copyright law exist for violations of the anti-bootlegging statute, the scope of any secondary liability for a section 1101 violation is unclear.

!  This statute also specifically provides that state law not preempted and does not annul or limit any rights or remedies under the common law or statutes of any State.

!  The sale of unauthorized recordings continues to be the subject of state criminal laws.

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Misappropriation of Hot Topics

!  Limited application.

!  National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2nd Cir. 1997) permits this action only where:

(i) the plaintiff generates or gathers information at a cost;

(ii) the information is time-sensitive;

(iii) a defendant's use of the information constitutes free-riding on the plaintiff's efforts;

(iv) the defendant is in direct competition with a product or service offered by the plaintiffs; and

(v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. 16

Rights of Publicity

!  A majority of states have recognized a cause of action for the right of publicity

!  Elements

o  Standing – celebrities have standing and may assign the right

o  Prove that the plaintiff’s identity has been used by the defendant

�  Protection is usually afforded to the plaintiff’s name and likeness

o  Appropriation of Plaintiff’s identity for defendant’s commercial advantage

o  There must be proof of a lack of consent

o  Plaintiff must prove that the use of identity by defendant resulted in injury

!  Rights of Publicity are preempted by performance rights under the Copyright Act (e.g., club owners’ ownership of copyrights to the broadcasts). Baltimore Orioles, Inc. v. MLB Players Association. 17

How will the materials be used by the fan and what

rights may be violated !  Potential Copyright Violations for use of photos or videos

o  public distribution - unauthorized transmissions of copyrighted works over the internet

o  public performance

"  Sporting Events

�  the playing of the game is not a performance within the meaning of the Copyright Act.

�  the secondary simultaneous retransmission of the primary transmission is a performance

"  Music concerts – public performance of the musical composition

o  Public display

"  placing a digitalized versions of the work on a website to which the public has access through the Internet is a public display

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How will the materials be used by the fan and what

rights may be violated (Cont’d)

!  Anti-Bootlegging Statutes – whether sold or transmitted live musical performance to the public

!  Misappropriation of Hot Topics – if reporting a live event

!  Rights of Publicity if used for commercial exploitation of the performer

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But What Does The Law Permit The Fan To Do With Those Materials

!  Copyright Defenses o  Minimal use - There must be a substantial taking to be actionable

"  Quantitative - a de minimus use of copyrighted material may not constitute copyright infringement, or

"  Qualitative – taking a small portion that constitutes “the heart of the work.”

o  Fair Use - for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.

"  This is an affirmative defense to a copyright infringement

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But What Does The Law Permit The Fan To Do With Those Materials

!  Fair Use Factors (nonexclusive) o  the purpose and character of the use, including whether such use is of

a commercial nature or is for nonprofit educational purposes (transformative?)

o  the nature of the copyrighted work - creative vs. informational

o  the amount and substantiality of the portion used in relation to the copyrighted work as a whole

o  Quantitative and Qualitative

o  the effect of the use upon the potential market for or value of the copyrighted work.

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But What Does The Law Permit The Fan To Do

With Those Materials – Fair Use Factors

!  Special application of fair use doctrine for parody

o  Parody is transformative in most instances

o  The commercial aspect is lessened or negated by the transformative use

o  The parodist may take the amount of the copyrighted work as is necessary to “conjure up” the object of the parody

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But What Does The Law Permit The Fan To Do

With Those Materials – Other Uses

!  Anti-Bootlegging Statutes – if kept for personal use and not for sale or transmission to the public

!  Misappropriation of Hot Topics – may have general periodic e-mails with friends to provide facts and experiences to them

!  Rights of Publicity – use for person and non-commercial purposes. exploitation of the performer

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What Remedies Are Available?

!  Revoke License

!  Copyright and Federal Anti-Bootlegging Statute o  Injunctions

o  Streaming – criminal activity

o  Statutory or actual damages

!  DMCA Safeharbor for ISPs (YouTube and Social Media) –takedown and put back procedures o  Notice and Takedown

o  Notice and Put-Back Provisions

!  Tort action – right of publicity and misappropriation of hot topics 24

Illustrative Situations

!  Bob takes a picture of the performance and (i) posts it on YouTube, (ii) copies and frames it and sells it for a profit, or (iii) uses/alters it to ridicule the performance

!  Sarah video tapes a concert and (i) posts it on YouTube, (ii) copies and frames it and sells it for a profit, or (iii) uses/alters it to ridicule the performance

!  Steve video tapes a portion of a sporting event and (i) posts it on YouTube, (ii) makes copies and sells it for a profit, or (iii) uses/alters it to ridicule the performance

!  Sally streams a live event and makes it accessible on the internet through her blog or website.

!  Sandy attends a sporting event and provides the score and the play by play description of the game as it occurs.

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Contact Information:

Richard A. Denmon Carlton Fields Jorden Burt, P.A.

4221 West Boy Scout Blvd., Ste. 1000 Tampa, FL 33607

Telephone: 813-229-4219 Cell: 813-505-1863

E-Mail: rdenmon@cfjblaw.com

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