RE: Re: The Rights of Major League Baseball

-----Original Message-----
From: Robert F. Bodi [mailto:lawlists[_at_]bodi.com] Sent: Friday, December 05, 2003 8:46 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: The Rights of Major League Baseball

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.).

But, of course, there are fair use rights to describe any work by another in some limited fashion. Whether a play-by-play would fit fair use, however, is more complicated.

-Bodi

====> What a wonderfuly procacative question. Several posters have
pointed out the "nonscriptedness" of sports but this is, I think, a distraction. I think that we would agree that rap contests where the participants come up with the rhymes on the fly, or the TV show "Who's line is it anyway?" (an improvisational comedy) are works of authorship. Why is a sporting event not a performance by an improvisational dance company? Certainly many elements of professional sporting events are designed to make them more fun to watch, rather than better contests of athleticism. (eg. The shot clock in basketball) I think that we have to look at the intent of the participants. The primary intent of the participants is (usually) to win, not to create a dramatic story. Spectator sports are designed so that people trying to win CREATES an interesting and drammatic spectacle. It's not an afterthought, but to the actual participants, it is almost a side effect.

It occurs to me that this argument can shed some light on the perennial "Is that REALLY a sport?" question. This is somewhat better than the "if it has judges, it's not a sport" litmus test. Perhaps if the participants are TRYING to create a dramatic work of authorship, it isn't a sport. (by which standard, figure skating still fails) Received on Tue Dec 09 2003 - 08:51:32 GMT