Sports Franchises Call a Foul on Social Media

By Max McGee, Jon Dimuzio and Caralyn Dienstman

When Tyler Andersen of Jacksonville, Florida attended the 2013 NASCAR Daytona 500 on February 24th 2013 in Daytona Beach, Florida, he thought it would be another exhilarating eventful day that the young Florida State student would get to have during his college years. Looking back at that day, exhilarating is definitely a term that may be more of an understatement (Tompkins).

A car crash that injured 14 cars on the final lap and injured 33 spectators transpired right in front of Tyler and he did what any person would have done in this day and age. He took out his smartphone and documented what had occurred feet in front of him. He uploaded the video to YouTube (Tompkins).

NASCAR claimed copyright infringement, which prompted YouTube to take the video down, but the website soon reversed its decision.

NASCAR Vice President of Digital Media Marc Jenkins flat out admitted it used the assertion of a DMCA (Digital Millennium Copyright Act) copyright violation to have the video removed knowing full well no violation had been committed.

We found a way to get into contact Andersen on Twitter and we exchanged private messages of what he could recall from that day of controversy. Anderson stated, “You expect a few wrecks and some big ones with it being Daytona but you never expect something like that. Especially one that causes harm to the fans.” In this particular scenario, and many instances similar to it, social media poses a threat to the sporting industry. It is this threat caused by the recent social media phenomenon that has lead to fans signing over rights of their still images and video’s they gather from various games over to national athletic organizations like NASCAR.

The act of whipping out a smartphone at a moments notice to record any given live phenomenon has become almost second nature for most millennials. Uploading classic images and videos on social media, is a quick and easy way to gain attention and keep the public in the loop. Images such as those from a 2004 brawl that broke out during an Indiana Pacers vs. Detroit Pistons game, demonstrated the epitome of this behavior. The event has since been nicknamed the “Malice at the Palace” is immortalized online. The repeating .gif file is only a few clicks away to anyone with Internet access thanks to the fans and phones that were present to capture the epic moment. It seems copyright infringement actions are one way for professional sports teams to keep control of its product – however under the fair use exception, this tactic doesn’t always give clubs the control they want (Tompkins).

The Fair Use Doctrine outlines exactly what is acceptable when reproducing particular work. Under the Fair Use Doctrine four factors are considered when determining if an image or video has been uploaded fairly. The four factors considered include the following (Tompkins):

  •   “The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes”
  •   “The nature of the copyrighted work”
  •   “The amount and substantiality of the portion used in relation to the copyrighted work as a whole”
  •   “The effect of the use upon the potential market for, or value of, the copyrighted work”

Going off of these four factors, the Daytona crash should not have been taken off of YouTube as it qualifies as “fair use.” Anderson posted video that was not intended to gain commercial profits or to exploit the NASCAR brand, but rather to report on a news incident. Although, Anderson had not originally intended to witness a horrific accident at a sporting event, he did, and therefore “fair use” should have been applied.In order to protect various works, the copyrighting laws hones in on creativity while not applying to ideas, systems and factual information conveyed. Focusing on those “fair use” credentials, NASCAR should not have removed the video from YouTube.

Controversy arose in this situation since Anderson was under the agreement that all footage captured belonged to NASCAR, because it was stated on the back of each his ticket. At the time the crash occurred, Anderson was unaware of this particular policy. Anderson said, “I’ll be honest with you. I didn’t know. But then again I wasn’t expecting that to happen. And I wasn’t the only fan either…I just got tweets telling me it was taken down by NASCAR for copyright.” Journalists and sporting leagues alike want to be able to protect their works and publications in order to make revenue. When it comes to sporting events, different organizations will take different approaches when it comes to regulating various social media and status updates.

The Premier League in the UK took more instantaneous action to control its images during the World Cup in Brazil. Although, legal action was threatened, similar to the Daytona event, there were too many postings for the league to monitor. Instead, videos were taken down from Vine, a smartphone app that enables users to upload six-second video clips. Officials of the Premier League came across clips of goals or highlights from random games on social media that were posted within seconds from when the action was actually broadcasted. The Premier League aggressively monitored the almost live posting to protect the value of the Leagues brand and the commercial rights associated with the brand (Wood).

Although copyright infringement during sporting events has been a long-lasting issue, the rise of Twitter has brought the issue to a whole new level. Erik Manassy, was one of the first die-hard sports fans to join Twitter back in 2006 when the site was first established. Manassy, a Jets fan, Tweets under the name “@e_man,” a handle that currently has over a million followers. Therefore, @e_man is capable of tweeting at least once every thirty seconds. Each tweet tracks and comments on players and plays alike. In 2011 Trustees of Columbia University published the Sports Leagues New Social Media Polices in the Columbia Journal of Law & Art. According to the Sports Leagues New Social Media Policy, “leagues can claim infringement where uploads originate from copyrighted material.”  If a follower is essentially tweeting a play-by-play of the game, then this could qualify as copyright infringement and is not protected under the Fair Use Doctrine. However, if posts are displaying facts then this is considered fair use. In this particular case the NFL went after Twitter, the hosting sight, rather Manassy’s millions of followers who had uploaded tweets. A notice and takedown features of the DMCA were invoked and the NFL succeeded in getting the tweets of the game broadcast, according to (Hull).

According to ABCNews, There may be no use of film or tape of a game in any manner while that game is in progress.  The network telecasting the game has exclusive rights to that game while it is in progress. The website states that “These Film/Tape Usage Guidelines apply only to distribution via over-the-air or non-standard television. There can be NO use of film or tape of a game on any other media platform including, but not limited to, on a wireless platform or on an internet or online site EXCEPT that such film or tape may appear on an internet or online site only if it is part of a single, non-archived, online “simulcast” of a television station’s regularly scheduled news programming.  “Wireless platform” includes, but is not limited to, cellular, personal communication services and other methods of providing content to handheld digital devices, paging, specialized mobile radio and wireless internet (including Wi-Fi). (ABC News)

In plain English this means that if you are not the media, you should not be filming the game with your wireless device.

On YouTube’s website, they have statements regarding to what happens if there are copyright infringements. It says, “If you are a company and own exclusive rights to a large amount of content that requires regular online rights administration, you may want to apply for access to YouTube’s Content ID system or to our Content Verification Program.

From these various policy statements from organizations such as ABC News or YouTube, it seems the onus is on the individual league or franchise to police possible copyright infringements. Considering that almost everyone has access to use of social media that may be an exercise in futility.


ABC News. ABC News Network, n.d. Web.


Journal of Law & the Arts Spring (2011): 10-12.Http:// Web.

Tompkins, Al. “Daytona Crash Video Tests Fair Use, Copyright for Fans and q   Journalists.” N.p., n.d. Web. 18 Dec. 2014.

YouTube. YouTube, n.d.

Wood, Pete. “The Premier League’s War against Its Fans Is

Unwinnable.”Http:// N.p., n.d. Web.

The First Amendment Down on the Farm: the “Ag-Gag” Controversy

By Leah Ference and Alyssa Luchette

The name “ag-gag” is, in and of itself, indicative of what seems to be popular opinion on the issue of the bills that seek to police the act of recording on farms across the country. The term, coined by Mark Bittman in a 2011 article for the New York Times,[1] refers to laws which seek to protect the Agricultural industry (“big Ag”) by “gagging” journalists and other whistleblowers who would otherwise seek to report the conditions that animals are subjected to while living on farms.

Essentially, the laws, which claim to work to “protect family-owned and corporate farms,”[2] prevent citizens from taking pictures, video, or audio recordings on farms across the country, as well as from lying on job applications to work on farms “undercover” for the purposes of obtaining this information. In the past, journalists and other whistleblowers have released videos and documentaries featuring footage taken from farms, often depicting cruel and/or illegal conditions for animals. Animal rights activists release the footage in order to raise awareness, and this kind of reporting and dissemination of information has proven essential for that purpose.

In his book Eating Animals, Jonathan Saffran Foer outlines the difficulties he had trying to get even basic information out of the farm facilities, including seven unsuccessful attempts to obtain legal access, or even information, from Tyson Foods.[3] With these kinds of roadblocks in the way for the press, they are left with no options other than to go undercover. Beyond that, the ag-gag laws punish the general collection of information, not just undercover operations. The first person arrested under an ag-gag statute, Amy Meyer, was on public property in Utah when she decided to film the operations at Dale Smith Meatpacking Company in February 2013 [4]. So while other meatpacking operations have successfully sued undercover journalists for trespassing, this woman was on the public street, so there is no property issue present, and she was therefore arrested for generally collecting information.

A sponsor of HB683, an ag-gag bill that was introduced in Pennsylvania in early 2013, claims that “there has to be a certain degree of privacy when you own a farm,”[5] but his view, as illustrated by the nickname of the bills, seems to be the minority. The PA bill failed, and the ASPCA website lists only seven states which currently have ag-gag laws in effect.[6]

Arguably, the main First Amendment issue at hand concerning ag-gag laws is that making it a felony to videotape farms is a violation of the right to freedom of the press. Yale Law student Lewis Bollard’s award-winning essay argues that because ag-gag laws “significantly restrict the flow of information in the public domain,”[7] they disrupt the core values of freedom of speech. The public cannot discover the truth of the matter if the press is not allowed to report on it, and the ag-gag laws prohibit promotion of stable change by hiding the slaughterhouse policies that the public would not agree with.

Bollard argues that strict scrutiny should be applied to those laws since they are aimed directly at suppressing speech, the First Amendment being one of the most important rights guaranteed under the U.S. Constitution. Citing the Supreme Court’s decision in a 1993 case regarding religious animal sacrifice, he concludes that ag-gag laws are “underinclusive for any goal other than penalizing undercover investigators,”[8]because they specifically target reporting on farm operations, and do not expand their restrictions to other aspects of or participants in the process. His argument is that the laws are too narrowly tailored, instead of targeting the general act of trespassing on the farm’s private property; ag-gag laws specifically target the press’s ability to report on the day-to-day operations of the facility, and therefore specifically prohibit expressive speech. Natasha Khan explains that because they are specifically targeted at “whistleblowers,” these bills “create a chilling effect on what the public learns about animal cruelty;”[9] which also unconstitutionally limits freedom of the press.

Because of the widespread media disdain for these laws and the relatively low success rate at passing them, the chances that they will become commonplace in states across the country are arguably quite low. Animal rights groups such as the ASPCA routinely post updates on which states currently have legislation that has been introduced, and ask that their supporters campaign against the bills being signed into law.[10] Often, even states which do manage to pass ag-gag type laws only succeed in prohibiting whistleblowers from lying on applications in order to gain entry into farms for the purposes of filming illegal or unethical activity.[11] It is therefore likely that most attempts to pass laws that criminalize reporting of these activities will ultimately fail.


Bittman, Mark. “Who Protects the Animals?” New York Times, April 26, 2011. Accessed November 2, 2014.

Khan, Natasha. “Bill Would Limit Whistleblower Activities on PA Farms.” Public Source. March 21, 2013. Accessed November 2, 2014.

Safran Foer, Jonathan. Eating Animals, (New York: Back Bay Books, 2009), page 84.

“Animal Legal Defense Fund Files Historic ‘Ag Gag’ Lawsuit.” ALDF. Accessed December 3, 2014.

“Ag-Gag Bills at the State Level.” ASPCA. Accessed November 2, 2014.

Bollard, Lewis. “Ag-Gag: The Unconstitutionality of Laws Restricting Undercover Investigations on Farms.” Yale Law. January 1, 2012. Accessed November 2, 2014.

[1] Bittman, Mark. “Who Protects the Animals?” New York Times, April 26, 2011. Accessed November 2, 2014.

[2] Khan, Natasha. “Bill Would Limit Whistleblower Activities on PA Farms.” Public Source. March 21, 2013. Accessed November 2, 2014.

[3] Safran Foer, Jonathan. Eating Animals, (New York: Back Bay Books, 2009), page 84.

[4] “Animal Legal Defense Fund Files Historic ‘Ag Gag’ Lawsuit.” ALDF. Accessed December 3, 2014.

[5] Khan, Natasha.

[6] “Ag-Gag Bills at the State Level.” ASPCA. Accessed November 2, 2014.

[7] Bollard, Lewis. “Ag-Gag: The Unconstitutionality of Laws Restricting Undercover Investigations on Farms.” Yale Law. January 1, 2012. Accessed November 2, 2014.

[8] Bollard, Lewis.

[9] Kahn, Natasha.

[10] ASPCA article, see citation #4.

[11] ASPCA article.