Policy Limiting Tweeting at UW Basketball Games Excessive, Unconstitutional

The University of Washington’s enforcement of its Live Coverage Policy at UW basketball games has the media crying foul.  The UW’s Live Coverage Policy states that members of the media who are “Credential Holders” “are not permitted to promote or produce in any form a ‘real time’ description of the event.”  A local reporter was recently reprimanded for sending excessive tweets during a UW basketball game. 

On what legal authority does the UW base the adoption of its Live Coverage Policy?  When considered in light of the live NBA broadcast, hot news and college football First Amendment cases discussed below, the UW’s actions exceed the scope of its live broadcast rights and violate the First Amendment.

The playing of a basketball game is not protected by copyright law.

Is playing a basketball game even a copyright issue?  According to KING 5, the UW Live Coverage Policy “has more to do with protecting digital rights holders, than prohibiting reporters to interact with people.”  In other words, the UW is trying to protect the rights associated with broadcasting the game.

A copyright holder owns the exclusive rights to distribute copyrighted works, to publicly perform copyrighted works and to display copyrighted works.  17 U.S.C. §106.  Although copyright holders own other exclusive rights, these are the rights that could apply to a sporting event.

The Copyright Act protects “original works of authorship fixed in any tangible medium of expression.”  17 U.S.C. §102

Under §101,

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

The italicized sentence is what allows sports teams to claim copyright ownership in the live broadcasts of games.  Sports teams, included the UW, do not own a copyright in the playing of the underlying game.

In National Basketball Association v. Motorola, Motorola marketed a handheld pager that updated the progress of NBA games every two to three minutes, including score changes, which team possessed the ball, the free-throw bonus status of the teams, the quarter and time remaining in the quarter.  The information for the pager was gathered by reporters listening to or watching live broadcasts on the radio or television.  The NBA claimed that Motorola infringed its copyright in both the underlying game and the broadcasts.

The Second Circuit Court of Appeals ruled that the NBA had no copyright in the playing of the game. 

Sports events are not “authored” in any common sense of the word.

The court ruled that sports events are not copyrightable.

The Second Circuit also ruled that Motorola did not infringe the NBA’s broadcasts.  Motorola reported facts that it gathered from NBA broadcasts.  Facts are not copyrightable. 

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Section 102(b).

The Second Circuit agreed with the district court that Motorola provided

purely factual information which any patron of an NBA game could acquire from the arena without any involvement from the director, cameramen, or others who contribute to the originality of a broadcast.

Reporters who tweet from UW basketball games do more than provide factual information.  They provide their own expression.  As such, the reporters are the copyright owners of their own tweets.  The UW cannot claim ownership of the factual occurrences at the games and it certainly cannot claim ownership of the reporters’ expressions in relaying those facts.

The UW cannot claim “hot news” ownership of its basketball games.

In Barclays Capital v. Theflyonthewall, the Second Circuit Court of Appeals ruled that the New York state law tort of “hot news” misappropriation was preempted, i.e., displaced, by federal copyright law.  State laws that conflict with federal law are preempted by federal law.  The hot news tort was created to prevent news services that did not independently investigate and/or report the news from misappropriating current news from news services that devoted the time, money and resources to gathering the news.

In Barclays, major financial institutions that generated research reports, analyses and made recommendations regarding publicly traded companies sued Theflyonthewall.com (Fly), a news aggregator, for hot news misappropriation.  Fly gathered and reported facts.  Among the points that the Second Circuit made in ruling that Fly did not misappropriate the financial institutions hot news is that Fly did not “free ride” on the financial institutions’ efforts.  “Free riding” is the unfair use of something that someone else has put the labor, skill and money into producing.  Fly did not free ride, because the financial institutions’ recommendations were news in and of themselves.  The court ruled that the financial institutions were trying to protect their business model and could not use the law to attempt to control who breaks the news and how.

Events that occur at UW basketball games are news in and of themselves.  The UW is attempting to control who breaks the news about its basketball games and how.  The UW’s attempts to control who breaks the news and how are impermissible, just as they were in Barclays.

The media’s tweets are protected speech under the First Amendment and cannot be regulated by the UW.

Daniel A. Moore painted scenes from the University of Alabama football games for over 30 years.  The paintings realistically recreated the University’s uniforms that the football players wore.  In 2005, the University of Alabama sued Moore for violating its trademark rights.  (The University of Alabama Board of Trustees v. New Life Art, Inc.)  Moore argued that he did not need the University’s permission to paint historical events.  The Eleventh Circuit Court of Appeals ruled that Moore’s paintings were expressive speech entitled to full protection of the First Amendment.  The possibility that members of the public would somehow infer that the University was involved with Moore’s paintings was outweighed by the public interest in free expression.  Moore’s First Amendment rights prevailed over the University’s trademark rights.

Universities cannot use claimed intellectual property interests, such as trademark and copyright interests, to quell free speech.  The UW is trying to control the First Amendment rights of the members of the media with its Live Coverage Policy.  Just as the University of Alabama could not control Moore’s free speech with its trademark law claims, the UW cannot control the members of the media by asserting a claim of digital rights.  The First Amendment rights of the members of the media and the public’s interest in free expression outweigh the UW’s application of its Live Coverage Policy.

Although this post specifically discusses basketball, the same analysis holds true for all athletics at the UW.  The media should not be intimidated into bowing down to the UW’s enforcement of its Live Coverage Policy.

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