Re: Re: The Rights of Major League Baseball

At 10:51 PM 12/8/2003 Monday -0500, Michael Graham wrote:
>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.

I don't agree with that -- I think the issue clearly is authorship. If the Yankees videotape [and/or broadcast] next season's opening day game, they'll have copyright protection for the videotape [and/or the broadcast], but not for the game itself. I could, for instance, reproduce the game -- i could hire the 18 players myself and have them try to re-create it exactly, and I would not be infringing any copyrights. Same for creating a derivative work -- a ballet, say (?) -- based directly upon the game. [That, at least, is the proposition that NBA v Motorola stands for, and I think it's correct on this point). David

>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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Received on Fri Dec 12 2003 - 04:10:19 GMT