Re: Re: The Rights of Major League Baseball

At 4:35 AM -0500 12/8/03, David Post wrote:
>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."

I would reach the same result with a different analysis, that doesn't exclude "improvisational" performances from copyright protection. I think the game itself is not a protected work because it is not fixed in tangible form. A broadcast of the game, on the other hand, is a protected work. So long as the play-by-play is an independent creation -- i.e., is not "derived" from the protected broadcast -- it is non-infringing.

John Noble Received on Tue Dec 09 2003 - 08:51:32 GMT