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Spectators, Video And YouTube Rights

This is not a golf story but's Michael McCann files an interesting analysis of Saturday's NASCAR crash caught on a camera phone and Tweeted by a spectator to YouTube, only to be taken down at NASCAR's request.

The issue has ramifications in golf where fans are taking video, and as golf media can tell you, the PGA Tour aggressively protects its television partners to the point the partners even don't like it (see Golf Channel's crticism of the Tour's Twitter policy this January.)

Thankfully, I'm pretty sure in golf a rights issue will revolve around fan video a great shot or on-course brouhaha between players, and not from life-threatening debris.

Anyway, McCann's piece is informative. This was of particular interest:

Benefiting NASCAR, courts have held that broadcasts of sporting events, though not the events themselves, are protected by copyright law. NASCAR has a compelling incentive to protect the broadcasts of races, as it, along with NASCAR drivers and teams, derive considerable revenue from television and other broadcast contracts. If spectators could essentially broadcast games through their iPhones and YouTube, television companies would pay much less for the rights to broadcast NASCAR races.

But only about 12 seconds of Anderson's 1 minute, 16 video is actually of a NASCAR race; the rest centers on the crash and fans scrambling for cover from flying debris. NASCAR's ownership over this latter part of the video is questionable, since "facts" and "news" are not subject to copyright protection and the First Amendment safeguards public access to them. The NBA knows this quite well. Back in 1997, the U.S. Court of Appeals for the Second Circuit ruled that the NBA could not claim copyright in its stats and scores, which Motorola had broadcast through a wireless paging device known as SportsTrax. The reasoning? Facts and news are not copyright protected.

It could be argued that at about 13 seconds into Anderson's video, the race transformed from a copyright-protected NASCAR event into a not-copyright-protected news event. Fans screaming and fleeing for cover is not part of any race, but is certainly newsworthy.

And if this is all too thoughtful and classy for you, there is always the NMA television take on the incident and NASCAR's handling.

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Reader Comments (8)

Retreading the professor's article, there is a lot of wiggle room in the "(Nascar) owns the intellectual property" in the race remark. Of course there is a license, and the terms likely govern, but that phrase may or may not accurately describe the actual license language on the ticket, and even if so at first blush it raises bells and whistles with me as to whether it works to transfer the rights that are clearly owned initially by the spectator. This may be settled law once you've gone past gut feeling, but gut feeling raises some issues to me. Dunno. Professor, why is that inherently a closed case, particularly with the main players now sidestepping the issue?
02.26.2013 | Unregistered CommenterHe's
The news aspect is clearly not subject to copyright, but YouTube must err in all cases on the side of caution jest the real arbiter (courts) determine YouTube was an accomplice in infringement.

YouTube is not a real arbiter, but must acquiesce in all instances out of fear, the nature of youtubes rebroadcasting business relies on keeping out of potential copyright trouble.
02.26.2013 | Unregistered CommenterDuck!hooker
News aspect is covered by copyright? Wha? It sounds more like a compilation from a copyrighted performance is an independent work. The Zapruder film is copyrighted, so there is more to the doctrine than "news isn't copyright able".
02.26.2013 | Unregistered CommenterJds
Youre right jds Technically news reporting would be a fair use defense
But my point is more that YouTube will cave in most instances at potential claimants rights
02.26.2013 | Unregistered CommenterDuck!hooker
So this is more about youtube covering their ass, and avoiding the threat of lawsuits, than NASCAR censorship? What if there was a horrific injury on the video, what is youtube's policy in that situation? I do not know the answers, just asking..
networks are concerned about competition? because who wouldn't rather watch a blurry, shaky youtube video from an iphone posted after the fact than live coverage in HD?
02.26.2013 | Unregistered CommenterRobert Matre
i tune into a golf website and i get Judge Judy....

Anybody who argues that the crashes aren't part of the race doesn't understand the appeal of NASCAR.
02.26.2013 | Unregistered Commentersmails
@smails....but you're Judge Smails! I thought you'd like all this "law" talk.
02.26.2013 | Unregistered CommenterGabe

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