Re: Re: The Rights of Major League Baseball

At 08:45 PM 12/5/2003 Friday -0500, you wrote:
>Why is a baseball game not a work of authorship by the participants?
>Although an interesting point has been raised, I am not so sure that it does
>not fit the definition. The so-called "facts" may be no different than
>doing a play-by-play of a movie. Just because you are describing something
>that you see does not necessarily make it a "fact" or "idea" as those terms
>are used in copyright law. Describe the movie in enough detail, and you
>have basically reproduced the screenplay, and thus perhaps violated
>copyright. The copyright meaning of "fact" is narrower than that. The
>"fact" can't be a fanciful creation by the author, for example, even though
>it is a "fact" that it is in the work. The game plays are only "facts"
>after being "created" by the "authors" (i.e., players, coaches, umps, etc.).
>

A baseball game is not uncopyrightable because it consists of "facts" -- it's uncopyrightable because (in my opinion") it's not "authorship." A play-by-play of a movie might well be an infringement, because the underlying work (the movie, or the screenplay) is a work of authorship and you're reproducing it ... but the work underlying the baseball play by play is not "authored" in this sense. Here's what the 2d Circuit said in NBA v. Motorola:

"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.

What "authorship" there is in a sports event, moreover, must be open to copying by competitors if fans are to be attracted. If the inventor of the T-formation in football had been able to copyright it, the sport might have come to an end instead of prospering. Even where athletic preparation most resembles authorship -- figure skating, gymnastics, and, some would uncharitably say, professional wrestling -- a performer who conceives and executes a particularly graceful and difficult -or, in the case of wrestling, seemingly painful -- acrobatic feat cannot copyright it without impairing the underlying competition in the future. A claim of being the only athlete to perform a feat doesn't mean much if no one else is allowed to try."

David Received on Mon Dec 08 2003 - 14:35:07 GMT