Copyfutures

What the Future holds for Sports and Copyright

This semester has opened my eyes to the multitude of copyright and IP issues prevalent in the sports world, and the huge and lasting impact these issues leave behind.   New technology is continually affecting all sports, making information and viewing available to fans through several different mediums - no longer just TV and radio.   In particular, the Internet is rapidly advancing the progress of sports technology, while simultaneously sparking a number of copyright infringement issues.  In order for both the sports industry and the copyright owners to benefit from the remarkable potential the Internet holds, the two sides need to strike a balance - one that will require some give and take on both ends. 

All professional sports leagues have been notoriously stubborn when it comes to issues of copyright infringement - after all, it is how they make most of their money.  But they often fail to look at the big picture; compromising on certain issues would actually increase their revenue, if they could find a way to appease the fans and the "infringers" (TiVo, espn.com, Yahoo Sports, fantasy football leagues, video games, professional photographers, even Vegas hotels, to name a few).  Often, the alleged copyright violations are incredibly lucrative ideas created with the sports fan in mind.  Sports leagues and franchises will need to approach these ideas with much more of an open mind in the future - and doing so will allow for a new era of sports to emerge.

As far as the current status of copyright in sports, progress is being made - very slowly.  For every settlement and agreement reached between sports leagues and copyright "infringers," there are ten times as many lawsuits with immovable parties on both sides.  I think this is due in part to the fact that many of these technological advancements have not been the product of a gradual progression.  Most took the sports industry by surprise, and rather than welcoming new ideas and concepts, they felt threatened and defensive.   As such, they pushed hard to make sure no one else was getting a piece of their profits.  What they didn't realize was doing so only opened the door for criticism, and shed a negative light on the industry. 

Fans viewed the sports world as overreacting, and didn't understand why leagues and franchises would want to restrict their use of "real time" gamecasts on the net, or tell them its illegal to TiVo a football game and tape it for their friends to watch later.  This made them resentful and resulted in lost profits for the leagues.  On the other hand, the leagues and franchises did have a valid argument: there were definitely copyright violations occurring through the numerous mediums mentioned above.  TiVo resulted in unauthorized distribution of games in areas that had been "blacked out" due to a lack of ticket sales, websites using real-time gamecasts were transmitting copyright information (and profiting from it) without a license, Vegas hotels broadcasting the Super Bowl in 7,000 seat venues was a violation of the NFL's telecast copyright, sports video games were using music clips without permission of copyrighted music compositions, and fantasy sports websites were providing web users with player statistics databases, infringing on the players' right of publicity.  Basically, the arguments were valid and the copyright infringement issues were real.  The sports industry was (and still is) being cheated, per se, out of profits that are, technically, rightfully theirs. 

However, I believe the future of copyright in sports looks brighter.  The publicity from all of the above mentioned issues has forced people to recognize what is happening in the sports industry, and also makes them realize what they can and cannot do.  There will undoubtedly be more copyright infringements in the future, but with a better understanding of technology, its impact on the sports industry and its potential for revolutionizing how we "watch" sports, there will be less and less infringement litigation, and hopefully, an attitude of compromise among sports leagues and franchises and those parties guilty (whether purposeful or not) of copyright infringement. 

Who Owns Fantasy Sports Statistics?

A recent Cardozo Law Review article entitled "Who Owns the Back of a Baseball Card?: A Baseball Player's Rights In His Performance Statistics" sheds some light on the copyright infringement and IP violation dangers new technology imparts on professional sports, Major League Baseball in particular.

A decline in attendance and revenue was a key reason in MLB's decision to incorporate new technology into the League in hopes of "revitalizing the game."  Web sites, satellite radio, e-commerce, "real time" gamecasts, fantasy sports leagues and virtual sports teams are becoming commonplace, as well as significantly increasing revenue for all professional sports.  The Internet is by far the most creative outlet for new technology; many minor league sports teams offer their fans live web casts or radio broadcasts of games.  The Internet is also host to over 30,000 fantasy sports websites - another technological advancement of professional sports that has grown exponentially over the past few years. 

The success of an "owner's" fantasy baseball team depends on his players' statistics throughout the season.  There are many Internet services which will provide "assistance" with statistics (for a fee, of course)  strengthening the argument that "at the center of the fantasy league concept is access to real life/ real time performance statistics.  Without access to these performance statistics and the names of players, the game loses its real feel."

Since most MLB player statistics are complied in some sort of database, the copyright issue is "whether any ownership or property interest in the database or compilation is protected by federal or state law?"  The concern is that without protection, the economic value of the database significantly decreases.   The article notes that although most databases/compilations are made up of pre-existing statistics, there are certain instances in which copyright protection will be afforded.

"A ‘compilation’ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The Term ‘compilation’ includes collective works."  This definition is important because the Supreme Court has long held that originality is necessary in obtaining copyright protection.   The grey area in fantasy sports exists because facts, or the act of gathering them, do not qualify as original works  - they are not works of authorship.  The angle databases are arguing is that the compilation itself is a "work of authorship," and therefore warrants protection.  The other side of the coin is that originality equates an independent creation, not simply copying other works and compiling them into a database ("the sweat of the brow does not originality make").

An important decision in Feist Publications, Inc. v. Rural Telephone Service Co., Inc. is applicable here.  Not only did the court reject the "sweat of the brow" position and reiterate the need for originality, but they went on to consider the question whether a factual compilation was worthy of protection.   Reasoning that "certain factual works may possess the requisite modicum of creativity to warrant copyright protection," the court held that in some cases, compilations could be protected under copyright law.

So, compilations can often have the necessary degree of originality essential in obtaining copyright protection.  What separates fantasy sports statistical compilations from an ordinary, purely factual database is that "a compilation selects specific facts, in what order to place them, and how to arrange data so that readers can effectively use (the information.)"  The economic value of a compilation - in this case, the fee charged by Internet services to fantasy baseball players - is not sufficient in itself to be considered worthy of copyright protection.

A player's individual right to publicity, however, negates the "original" argument to some extent, as they help protect statistics and make it seem apparent that "a third party may not use a database of players' names and performance statistics in a fantasy league game without consent or some form of compensation."  If the Internet services would pay a portion of their profits to the MLBPA (or the MLB itself, depending on who owns the rights to a game, the League or the player - a subject under heated debate), perhaps the problem would be solved.   But for now, copyright law grants limited protection to compilations that meet the 'original' standard, and publicity rights protect players and league owners from unauthorized or uncompensated use of performance statistics.

Figure Skaters on Thin Ice with Music Rights

Anyone who has watched a figure skating competition or exihibition either live or on TV has probably noticed the use of many popular songs as part of the skaters' programs.  Having an extensive background in this sport myself, I found this article on the possibilities of copyright infringement with regards to "music rights" especially interesting. 

Unfortunately, knowledge of the cost to use a piece of music - and of the possible consequences if you fail to aquire this right - is a rare commodity among skaters and coaches alike.   Much of this is due to the fact that the skaters themselves are not responsible for asking permission to utilize a piece of music as part of their program.  The producers of the event are the responsible party, the ones who need to secure a deal with music execs before the music can play at the arena.  In fact, the producers are also the ones who pay the music companies for the right to use the piece, not the skater (and songs range in price from "thousands to tens of thousands of dollars.")

The network producers, then, are the ones doing all the work.   The first thing that needs to be analyzed is what type of event the music is being used for - a live performance, a TV event, or a previously recorded (video-taped) show.   This will determine who actually gets paid for the music rights.  There are two U.S. based corporations that are responsible for the majority of all music licensing rights - American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Inc. (BMI).  Between the two, skaters have about 7 million songs to chose from (4 million and 3 million, respectively.)  Either of these companies will usually grant the network permission (or, technically, a "performing right license") to use music from their vault in exchange for a fee.  Both ASCAP and BMI ensure the musicians protection by "licensing and paying royalties for the public performance of copyrighted works whenever a copyrighted song is sung or played."

Among the exclusive rights granted by the Copyright Act is the public performance right.  This terminology often gets misconstrued, however, as a "performance" in copyright terms  "refers to playing songs on a radio station, in a hotel lounge, in a department store, or playing a CD at a nightclub," explains an ASCAP executive.  Music is a form of intellectual property, and in order to ensure proper compensation for the use of their work, musicians and composers created ASCAP, which grants "blanket licenses" to networks.  Once this license is granted, the music can be used as much as the network or the skater wants for a blanket fee.

Live figure skating events require ASCAP to license the entire facility where the event is taking place.  In this situation, ASCAP determines the fee "by a formula that considers the highest admission price and the area of the ice surface in square feet. For example, an ice arena of up to 10,000 square feet of ice surface with a highest ticket price of $15 would cost $770 for the skating season."  That $770 pays for every skaters' music for every program for the entire duration of the show (usually, several months at least).  Sounds pretty reasonable, right?  Money well spent to avoid potential copyright infringement.  However, televised figure skating events tend to be significantly more expensive as they entail negotiaion, unlike live performances.   The "negotiation" means that the network producers  "need to secure the synchronization right from the music publisher."  This is where the music executives gets the true upper hand, since they can basically demand any price from the network.   Plus, the synchronization right only applies to the right to use the music on video, not on television.   (The performance right grants permissable use on TV.)   Not only does securing rights to video performance require this synchronization right, but a mechanical right as well, which "currently costs 6.9 cents per song, per copy sold."  ASCAP and BMI are able to grant performance rights to networks, who pay them in return according to the size of their respective markets.  Cities with larger audiences for figure skating pay more, those with smaller audiences pay less.  ASCAP executives say the bottom line of music rights is the simple concept of supply and demand.

One problem is that sometimes, music doesn't clear despite negotiations and the help of ASCAP or BMI, and skaters are faced with changing their entire performance, often at the last minute.  Also, some musicians ask absurd amounts of money of producers who are compiling a skating video and want to feature a performance to that musician's song.   This usually resutls in an expensive resale price, or producers settling for second-choice performance in their videos.   Another frustrating obstacle for video producers is when skaters don't know who sings or composed their program music.  This requires a great deal of work by the producer in hunting down the artist and requesting permission, often times hitting a dead end.

To catch the dishonest producers out there, the ones who wouldn't bother tracking down the artist if the skater didn't know, or who attempt to get away with using music in a production and not paying for it, ASCAP and BMI have "music police," responsible for enforcing the public performance rights and laws.  For those who don't adhere to the law, the fine for copyright infringement ranges anywhere from $500 to $100,000!  Bottom line - "It's cheaper to do the right thing." 

The Super Bowl III Problem

I've talked alot about the dangers of copyright infringement regarding the NFL - TiVo, Super Bowl parties in Vegas, the NFL photo archive, etc.  However, before the 1976 Copyright Act even existed, one of the most famous NFL copyright infringment incidents of all time occured - the "Super Bowl III Problem."  This incident raised the issue of the property rights of live game broadcasts, and for the first time confronted the illegal and unauthorized distribution of a recorded NFL game - Super Bowl III.

Super Bowl III took place in 1969, 7 years before our current copyright law was enacted.   Although VCR's were a rare commodity back then, a taped VHS copy of the game ended up on e-bay a few years ago.   Nowadays, the NFL owns the copyright to all broadcast games due to many long-term agreements with teams and networks.   But back in 1969, property rights to such broadcasts differed significantly from what they are today.   The NFL still contracted with networks and teams, but were not afforded copyright protection.  The genesis of the "problem," then, was "what cause of action arises from the copying and unauthorized distribution of the taped live broadcast of Super Bowl III?"

Each NFL franchise owns the rights to their team's live television and radio broadcasts, as well as the right to license these broadcasts.  The two teams at issue here are the New York Jets and the Baltimore Colts (now, the Indianapolis Colts). However, there was a discrepency in who owned the copyright to the game, and the article notes that:

"There was no record of a Copyright Registration for Super Bowl III by the NFL, AFL, Baltimore Colts or New York Jets.  Secondly, the NFL in this case refers to the National Football League as it existed prior to the merger with the AFL in 1970.  Thus, the New York Jets negotiated its television contracts in conjunction with the AFL.  In 1970, both leagues merged into the NFL, as it is now known.  There is a question as to whether or not the Jets’ rights via the AFL were transferred to the newly credited NFL.  "

Assuming, then, that the NFL owned the broadcast rights to Super Bowl III, the only was they would be able to successfully bring a copyright infringment suit for unauthorized distribution of the game depends on whether the League had a valid copyright in a VCR recording of the game.

To answer this question, a similar case comes into play.  NBC had encountered a pirated VHS tape a few years earlier of its broadcast of Peter Pan from 1960!   NBC did not register for a copyright of Peter Pan until 1980, when current copyright law was governed by the 1976 rather than the 1909 Act.   Sonneborn, the man responsible for the pirated copy of Peter Pan, argued that NBC did not register for the copyright certificate until 5 years after the film was published.   NBC, however, said distributing the film to NBC affiliates across the country "constituted a limited publication under the standard established by the 1909 Act."

Ultimately, the court decided to apply the provisions of the 1909 Copyright Act and held that NBC's distribution to its affiliated equated a limited publication, and their copyright certificate was valid.  NBC was essentially allowed to register for a copyright of Peter Pan 20 years after it aired, and they only did so after they found it was being "illegally" distributed.

SImilarly, the NFL does not own a copyright to the Super Bowl III broadcast.  They could register for a copyright today under the 1976 Act, but in order for them to recover damages on infringment claims, they would have to prove that somehow, the distribution of the VHS tape amounted to behavior that would "invalidate a copyright certificate made under the 1909 Act."

The court in the NBC case defined a limited publication under the 1909 Act as “communicating the contents of a work to a definitely selected group and for a limited purpose, without the right of diffusion, reproduction, distribution or sale.  The circulation must be restricted both as to persons and purpose.”  Applying this to the Super Bowl III problem, it appears that that broadcast could also be termed a limited publication.   Further strengthening the NFL's case is the fact that the game wasn't distributed to any affiliates for rebroadcasting purposes. 

So, should the NFL register for a copyright of the Super Bowl III broadcast, and have that copyright upheld in court, then the online distributor of the VHS tape would be considered to have infringed on the NFL's copyright.

The root of this problem, and many other copyright infringment cases, stems from the development of new technology that allows for the furtherance of unauthorized distribution of all types of media.  In order to combat this problem, copyright law and courts alike will need to keep up to speed with new developments, and adjust both the law, and remedies, accordingly.

NFL/TiVo Resolve Legal Battle

To update a post from earlier this semester regarding NFL's legal dispute with TiVo over the alleged illegal distribution of previously recorded football games, the FCC decided that the threat of copyright piracy was not enough to reject TiVo's new portable features.  The FCC certified TiVo for meeting the copyright protection requirements for digital TV.

The feature in dispute was "TiVoguard," created for the purposes of controlling copyright piracy.   The NFL's main objection to TiVoGuard was its possibility of allowing games to be distributed and viewed in cities where NFL games had been blacked out due to a lack of ticket sales.   The FCC disagreed with the NFL's objections, and approved TiVoGuard as meeting the FCC's "'broadcast flag' copyright protection regulations." 

Basically, the TiVoGuard feature "allows subscribers to share recorded TV content with a limited circle of friends and family across the Internet," say company spokespeople.   Although TiVo CEO Mike Ramsey understands the NFL's concerns, he states that "TiVo has always tried to maintan an appropriate balance between consumer interests and the rights of content providers."   He went on to say that "(TiVo) look(s) forward to working with the industry to develop new technologies that provide a great entertainment experience for consumers while protecting the rights of content providers."

FCC reps, although certifying the new technology, have expressed concern that the new feature has the possibility of not providing the copyright protection it aims to.   They recognize the growing problem of widespread copyright distribution, and say that "if it turns out that what the studios and NFL say is true, we can just yank the certificate."

For further comments on the decision, and views from the NFL and MPAA, check out this site.

A License to Copyright

After reading about the dispute between the NFL and the many photographers who are caught up in a battle over licensing the NFL's photo archive, I was curious to learn more about the role licensing played in the worlds of both sports and Intellectual Property - specifically, copyright law. What I discovered is that licensing is a more dominant industry in sports apparel (particuarly collegiate sports) than any other medium of IP.

Licensing represents a combination of copyright and trademark law, each one playing an important role. We all know that a copyright protects ownership rights for any artistic, literary or creative work, and exists once an idea has become tangible. There are many things that cannot be copyrighted, such as names, titles, short words or phrases, slogans and well recognizable symbols. Should your idea fall into the protected category, you are assured copyright protection even if you don't display the "©."

Trademarks, on the other hand, are identified as "a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of goods of one party from those of others," according to the U.S. Patent & Trademark Office. Like a copyright, a trademark doesn't necessarily need to be registered for it to be effective, although it makes it much easier. Unlike a copyright, a trademark can apply to groups of words, rather than one singular word. (For example - Donald Trump recently tried, unsuccessfully, to trademark the phrase "You're fired.")

So where does licensing fit into all of this? "Perhaps the most common area of licensing in the imprinted apparel industry is college sports." Many of these "imprinted apparel" items have a phrase or saying embroidered or displayed somewhere, and if this is done without permission of the copyright or trademark owner, it constitutes infringement. But a copyright or a trademark doesn't make it impossible to license something; buy purchasing a license, you are actually purchasing the right to use a particular piece of protected property.

With regards to licensing, most collegiate sports (and their respective universities) are run by Collegiate Licensing Co., or CLC. Aditionally, CLC represents many bowl games and athletic conferences as well. A clothing and apparel company who wants to purchase a license from a major university's football team would go through CLC rather than dealing directly with the school itself. CLC charges between $200 - $800 for the license, plus royalties ranging from 6-8% on sales of the licensed clothes. There are some universities that choose to deal with licensing themselves, rather than go through CLC. Most often, they will only charge a annual flat fee for the license, rather than take a cut of the profits.

So what about professional sports? The NFL, MLB, NBA, and NHL? These Leagues charge outrageous amounts for a license, and make it so that most small businesses can't afford to purchase one. Many small business owners are turning instead to minor league sports, where the prices are more compatible with those of the CLC.

Surprisingly, stock car racing has become a huge and profitable area for licensing. While you can't usually trademark a name, a stock car driver can trademark his name for purposes of racing only. To clarify:
"Richard Petty can trademark his name in regard to his activities. If you have a customer who also has the name Richard Petty, you can certainly embroider his name on a jacket, as long as there is no implication that the racer is being represented. For example, including a picture of a certain racing car or adding the car's number would be considered unique identifying characteristics associated with the driver Richard Petty. Thus, using them in conjunction with the name would certainly make an implication that the Richard Petty in question was the famous driver."

To give you an example of how lucrative a business licensing is, think about how many times you've seen a USC or Oklahoma t-shirt, and realize that both universities are charging the clothing company a fee for every article of clothing they manufacture with the Trojan or Sooner logo on it. The CLC is getting that 6-8% of all sales, meaning that "nationally, collegiate licensing rakes in as much as $2.5 billion annually."

Basically, licensing is another aspect of IP that shapes the sports industry (among others) along with copyright and trademark law. Although an incredibly lucrative industry, there are so many ways to get caught up in a legal battle over infringing on someone's copyright or trademark (check out this site for some further clarifacation on the relevance copyright law has to licensing.) Next time you throw on your college sweatshirt or baseball cap, think about how copyright law permits these licenses to be granted so that we can all cheer on our favorite team.

NFL Photographers Use Copyright Ownership in Photo Archive Dispute

The NFL has archived approximately three million photographs of its players and games, and executives are pushing for the licensing of the archive via a third-party photograph agency (either Getty Images or WireImage, most likely). Standing in the way, however, are seventy five photographers who are part of the hundreds that are responsible for actually creating the archive. They own the copyright to the images, and say that without their permission, the NFL cannot legally license the photo archive to anyone. In addition, the photographers are threatening to reclaim all of their pictures by asserting their copyright ownership, and in doing so "scattering decades of professional football history - by far the most complete collection of its kind - to individuals in every corner of the nation."

Negotiations have been ongoing for over a year, with the heart of the issue being how much the photographers will receive in return for their permission to licensing the archive. No agreement has been reached, as Richard Lewis, the photographers' lawyer, claims that "tens of millions of dollars worth of images may be missing, and that the archive was badly organized." The NFL's VP of new media Chris Russo disputes the claims as untrue, and is unwilling to match the photographers' proposal. He believes that the NFL has the legal right to contract with a third-party licensing agency, but has not done so yet out of respect for the photographers. He goes on to say that the NFL is working hard to "to go the extra mile to accommodate (the photographers)," although it seems that the photographers are the ones with the upper hand here. Owning the copyright to the pictures gives them the power to call the shots.

The NFL put an alleged "final offer" on the table, with the understanding that if it was rejected by the photographers, the NFL would have to start returning the photographs to their copyright owners and create a licensing agreement with Getty for future photographs only. The deal offers the photographers 250% of their average salary for a period of 10 years (ending in 2002). 90% of the 75 photographers need to OK the offer, including 16 particular photographers whose work is considered the "most valuable" by the NFL. Richard Lewis is not optimistic about his clients accepting the offer.

Lewis notes that money is not the only reason the photographers are putting up such a fight against the NFL. There are also "complex issues of emotion regarding the changing sports business practices."

In other words, the photographers worked hard to get their shots, using their own equipment, providing their own transportation, and often times having the NFL accept only one out of a hundrend of their pictures. The ones the NFL does want are the ones the photographers own the copyright to, derive profit from, and are most proud of.

Lewis eventually worked out a deal with the NFL, getting the photographers more money and taking special care of photographers who have been in the business the longest. Unfortunately, this means the dissemination of the photo archive, which is essentially "the visual history of the NFL." Also, WireImage beat out Getty for the licensing deal - and all photographers who own copyrights will continue to own them under the WireImage deal. In the end, the NFL will pay the seventy five photographers nearly $1 million.

Many other similar disputes arise regarding the licensing of player and game photographs in the sports world. However ugly the battle may get, however, it seems that whoever owns the copyright will always come out on top.

EA Sports Sued Over Video Game Music

In recent years, sports video games have become extremely realistic and increasingly popular, not only among teenagers, but among the athletes who actually use these games to help them train. Three such games in particular - Madden NFL 2004, MVP Baseball 2004, and Tiger Woods PGA 2004 - are all created by Electronic Arts (EA), the largest video game producer in the world. They are also the reason why EA was slapped with a copyright infringement lawsuit a few months ago by EMI Group, a leading music company whose artists include Norah Jones and Robbie Williams.

EMI claimed that the three games mentioned above, along with several other EA games, "use songs that 'embody copyrighted musical compositions that EMI owns, co-owns, administers or otherwise controls'."

This lawsuit was particular damaging to EA, as music has become such a huge and important part of the success of their video games. Players recognize the music and associate it with a certain game - it creates an atmosphere of excitement and anticipation during the game itself. EA has also used their video games as a platform to introduce the music of both new and well-known artists before their CD's come out for sale to the public.

EA claims that the entire basis of this lawsuit is unstable. EMI brought suit largely over a song featured in an EA video game that sampled lyrics from another song licensed to EMI. EA executives say that they licensed with that artist directly to get permission for use of the lyrics, and say that every song they use in their games is the product of a direct argeement with the artist themselves. In fact, the company established EA Trax last year, a division of EA created to "provide licensed music from major artists" for use in EA sports video games. This feature has contributed immensly to the success of EA's games.

EMI responded by acknowledging that EA did approach them last year to discuss licenses of songs to use in their sports video games, but then proceeded to release the games - with EMI's songs - without consent. After the release, EA continued their efforts to contract with EMI for licenses to these songs. It was then that EMI brought suit, "claiming its rights had been infringed and withdrawing any outstanding licensing offers."

In addition to damages, EMI is hoping to get a cut of the profits EA made off of these sports video games, estimated to be "tens of millions of dollars."

This isn't the first time EMI has been involved in a copyright infringement lawsuit. In June of 2003, they sued Bertelsmann AG, a German media company, over its $85 million investment in Napster. The basis of this suit was the allegations that Bertelsmann contributed to Napster's copyright infringement violations by helping to keep the program afloat via the investment money. Bertelsmann was also given a say in Napster managerial decisions, leading EMI executives to claim that "by investing both millions of dollars and management resources in Napster -- which was an illegal enterprise built on the unlawful distribution of copyrighted works -- Bertelsmann enabled and encouraged the wholesale theft of copyrighted music."

EMI received part of the $5.5 billion blow the music industry suffered as a result of illegal sales and piracy in 2002 alone. That same year, CD sales declined 8.8%. In an effort to make up for some of these losses, EMI announced this June that they will be releasing a program that enables cell-phone users to share MP3 files through their phones. After a certain period of time, the songs will be erased unless users want to purchase them. EMI is the first record lable to ever launch such a program, which has been termed "super-distribution," allowing and promoting legal file sharing.

Back to EA for a moment - EMI appears to have a valid claim and considering the amount of successful copyright infringement lawsuits lately involving the music industry, it seems probably that EA will be requried to pay damages and perhaps even some of their games' profits. While this could be a setback for EA, it will most likely be only temporary as they will be more careful in the future when licensing songs. And, EMI is seemingly finding new ways to generate profits in a time when copyright infringement in the music industry - whether purposeful or not - is more and more likely to occur.

Redskins Stand By Their Name

In the past few years, the Washington Redskins have been faced with serious legal issues surrounding their team name, and the fact that some people find it disparaging to Native Americans. The team was victorious in a 2003 decision, and although there has been some talk of changing the name, Redskin fans and D.C. residents are actually quite happy with their team's name and logo. Backing them is the Redskins' owner, Daniel M. Snyder, who says he has no interest in changing the name either. This recent show of support comes to the dismay of advocacy groups who are campaigning for a change and threatening Washington with bad publicity and lawsuits. Although similar groups have been successful in the past in their efforts to rid high school and college team names of "Indian" references, it doesn't appear the same will happen in Washington.

The original lawsuit against the Redskins that started it all was brought in 1999 by an advocacy group opposed to the use of Indian names for sports teams. They were successful at first, with a ruling ordering the cancellation of the Redskins' trademark on the grounds that "the law gave no protection to trademarks that are 'disparaging, scandalous or contemptuous'." However, the decision was reversed on appeal in 2003; all the while, the Redskins saw no drop-off in the sale of team merchandise. In fact, in the nearly four years it took for the appeal to be granted, practically no one stopped using the term "Redskins" (with the exception of one newspaper who only referred to the team as "Washington"). Other than that, what had seemed a successful victory for the Indian rights coalition soon became a joke among NFL fans and D.C. residents.

Currently, the controversy in Washington stems from not only the team name, but the fact that many fans - and media - often shorten the name to simply, the "Skins." But a recent poll taken revealed that 90% of Native Americans aren't bothered by either name at all! When asked what came to mind when they heard the word "Redskins," most people never thing of an actual American Indian. So what's the big deal? Can a team with an Indian reference as its name really be forced to change its trademark?

Consider the Redskins' argument that the name actually honors Native Americans. Suzan Shown Harjo, a Native American activist, began the attack on the team name, referencing a federal law that "prohibits the government from registering a trademark that disparages any race, religion or other group." While this is a valid law, the judge ruling on the appeal decided it just wasn't offensive. He reasoned that Harjo and other members of the Native American coalition "had little legal grounds to complain because they waited 25 years after the first Redskins trademark was registered to formally object to the team's name and images.” Generally, trademark law states that "challenges based on disparagement" need to be brought within five years of the alleged offense. So the legal argument seems solid, and the Redskins raise valid points as well - but now consider for a moment Denny McAuliffe's question posed on his blog - "Why would the nation’s capital, a city containing some of the best and brightest minds in the country, support a professional football team whose name is a slang word for an ethnic group’s skin color—and be in a genuine fog over what the fuss is about?" A valid question as well - and one that doesn't appear will be settled anytime soon.

One last point - on the other side of the coin from the Redskins is the state of Iowa (and their ironically named football team, the Hawkeyes.) Iowa has a state policy forbidding "playing against any sports team that has an American Indian as its mascot," - for example, the San Diego State Aztecs. UI is not allowed to play SDSU in any athletic event. How did this all come about? "A few American Indian faculty and students brought this topic to the board's attention," said University of Iowa Athletics Director Bob Bowlsby. "The board had a discussion on it and figured the policy would be something good to implement." Arguments and objections often brushed aside in professional sports have a much stronger impact on colleges. Should coalitions such as the ones objecting to the Redskins eventually become successful, it would mean a huge shift in current trademark law decisions.

NFL Cracks Down on Super Bowl IP

The NFL is notorious for filing complaints and alleging copyright infringement, especially during football season. The one event they crack down on the most is, of course, the Super Bowl, as it tends to create a huge market for unauthorized distribution and trademark infringement on many things synonomous with the Super Bowl itself. The NFL holds the property rights to all phrases relating to the Super Bowl, and enforces very strict rules about which ones may not be legally broadcast by marketers and promoters not authorized by the NFL; for example:
Summary of Use of Trademarks [In Marketing & Promotions]

You cannot say or print:
* “Super Bowl”
* “Super Sunday”
* The Super Bowl logo
* “NFL”, “AFC”, or “NFC”
* “National Football League”
* “American Football Conference”
* ‘National Football Conference”
* Any team name (e.g., “Buccaneers") or nickname ("Bucs")

You CAN say or print:
*"The Big Game in (host city, i.e. Hosuton)"
*"The Professional Football Championship Game in Houston"
*The date of the game
*The names of the cities of the teams competing in the Super Bowl (i.e. New England v. Carolina), but NOT the team names themselves (i.e. Patriots v. Panthers)
*You can make fun of the fact that you cannot say the phrase "Super Bowl" by bleeping it out

Ok, now that the NFL has established those rules, here is their justification. They have a property interest in all descriptions and accounts of the Super Bowl, and they make money by selling these rights to television and radio stations, authorizing them to broadcast the Super Bowl using any of the phrases from the first list as often or as much as they want. The NFL created the Super Bowl, choses its venues and controls the distribution and dissemination of all related material with the understanding that they also have the right to control this distribution for a certain period of time after the Super Bowl. All tickets are printed with the disclaimer that no one inside the stadium can give accounts or descriptions of the game to media without press credentials. This means that your radio or TV station needs to obtain press credentials before the Super Bowl, you can't report or comment on the game while it is going on. Your only legal option is to report on the "news" of the game after its over (who won and what was the score).

As mentioned earlier, the NFL has a reputation for enforcing their IP rights very strictly against any infringers. Courts have typically sided with the NFL, holding that since they own the copyright to the telecast, they have the right to charge a fee to anyone who wants to use game highlights. Again, this means a TV or radio station needs to pay this fee prior to the Super Bowl to have the right to use highlights of the game and halftime show on their own broadcast.

But it doesn't end there....

The NFL actually cracked down on Vegas hotels this past January, forcing them to cancel their Super Bowl parties because their TV's were too big! Hotels were told that these parties were "unauthorized use of NFL Intellectual Property." The Aladdin Hotel, for instance, usually shows the game in a 7,000 seat theater - the NFL told them they need to get a bunch of smaller TV's and put them around the casion, but putting 7,000 people in front of one giant TV is a violation of their telecast copyright. This move stirred up a lot of controversy from fans who traveled to Vegas to watch the game, adding to the NFL's already greedy, money-hungry image. However obscure this Vegas argument may seem, there are some valid points underlying the NFL's argument. It will be interesting to see what this year's Super Bowl brings...