Project DisCo readers know that a number of our contributors have regularly posted on the subjects of copyright and fair use. Indeed, the topic is not only important, but one for which change is frequent and sometimes lurching. Nothing exemplifies that better than the shifting sands of copyright enforcement by major U.S. and international sports organizations, like the National Football League and Formula 1, in today’s age of social media.
I’ve been a passionate fan of both sports for decades, since the “British Invasion” of Indianapolis with rear-engined race cars of 1963-65 and the Green Bay Packers’ dominance of professional football throughout the 1960s. In those days, of course, there were no VCRs, DVRs or digital media available to consumers and fans. And as NFL aficionados recognize, each television broadcast on Sunday (and Thursday or Monday) is preceded by a conspicuous copyright notice cautioning that except for private viewing, “any other use of this telecast or any pictures, descriptions or accounts of the game without the NFL’s consent is prohibited.”
That “prohibition,” Ars Technica observed, is “wrongheaded.” Almost alone among Western nations, the United States has enshrined fair use by statute into the very fabric of copyright law. Fair use permits one to publish excerpts of a copyrighted work legally, by application of a multi-criteria test focusing on the “purpose and character” of the use, the nature of the copyrighted work, the ”amount and substantiality” of the portion used and “the effect of the use upon the potential market for or value of the copyrighted work.” Thus, fair use of a copyrighted work, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright.” The NFL can no more prohibit newspapers, or bloggers, from publishing an “account” of pro football games than the company owning rights to the Ed Sullivan Show could prevent use in a Broadway production of a 7-second clip from a 1966 episode depicting introduction of the Four Seasons musical act.