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 jetsrant.com (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.
Hull, Michelle R. “SPORTS LEAGUES’ NEW SOCIAL MEDIA POLICIES.”Columbia
Journal of Law & the Arts Spring (2011): 10-12.Http://www.wilmerhale.com/. 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://www.theguardian.com/. N.p., n.d. Web.