RE: Re: The Rights of Major League Baseball

-----Original Message-----
From: John Noble [mailto:jnoble[_at_]dgsys.com] Sent: Monday, December 08, 2003 10:52 PM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: The Rights of Major League Baseball

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

   I think that most of us have a gut reaction that games themselves are NOT works of authorship. The question is what doctrine will allow us to exclude them while including such things as improvisational dance. Which definitely isn't covered by copyright unless it is fixed, but is a work of authorship regardless. I think that fixation is another distraction. IANL, but I think that fixation to videotape fixes the underlying work. Besides, much of a (American) football game IS done to a series of scripts, they're called plays. Again, I think that what matters is intent. I would argue that even a football play are not intended to be drama, but is instead a "proceedure" or "method of operation" under 17USC102 intended to win the game. So long as what is done on the field (or on the (basketball) court) is intended to win and not to appeal to any aestetic or artistic sense it is not a work of authorship. Admittedly, I'm on shaky ground here, because I can see no "bright line" between a football play and a figure skating routine.(which I DO believe is a work of authorship.) The only real distinction that I can come up with is that a football play is a means to an end, not an end work in and of itself. In a playbook, are the plays protected other than as a compilation? Hmm.... Received on Tue Dec 09 2003 - 23:56:31 GMT