RE: Re: The Rights of Major League Baseball

Actually, the issue is not Authorship, but the fact that the actual game is not fixed in a tangible medium. To the extent it is captured on videotape or transmitted in broadcast form, however, it is protectable.

Michael R. Graham

-----Original Message-----
From: David Post [mailto:Postd[_at_]erols.com] Sent: Monday, December 08, 2003 3:35 AM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] 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 


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