Bowled Away - 8-Second Cricket Clips Infringe Copyright

As a major consumer of North American sports, this writer is very reliant on the provision of highlights for this favorite sports, enabling him to keep on track with the latest developments and just to indulge in great sporting feats. Even highlights, however, are big business, being an important draw for new (and old) viewers to subscribe to TV or on-demand services providing full games in many sports, or just servicing as a vehicle to sell more merchandise through official channels. The emergence of social media has changed this dynamic, allowing for the provision of live highlights or video clips, showcasing sports events as they happen, with or without the blessing of the sporting organizations. With this in mind, would short clips of sports activities constitute copyright infringement or would app creators be allowed to let their users share these moments as they please?

The case of England And Wales Cricket Board Ltd v Tixdaq Ltd dealt with an app called Fanatix, which, among providing sports news, allowed for its users to record clips (up to 8 seconds long) using their smartphones or tablets, and sharing them with like-minded sports fans who might not be able to follow the action live (encapsulating mostly the 'highlights' of an event). The clips could be viewed through the app or on Fanatix's social media pages. The England and Wales Cricket Board own the rights to broadcast all video on cricket matches played in England and Wales, and upon noticing clips of cricket games broadcast via the Fanatix app, took its owner Tixdaq to court for copyright infringement.

Tixdaq argued that their use of the works was within the remit of fair dealing, specifically for the purposes of reporting current events under section 30 of the Copyright, Designs and Patents Act 1988. As such, the substantiality of the copying needed to be assessed, including for the purposes of infringement. Justice Arnold considered both parties' submissions, and saw that substantiality is to be assessed considering "...elements which reflect the rationale for protecting broadcasts and first fixations, that is to say, the investment made by the broadcaster or producer". One should not confuse this with the requirement of originality in relation to other types of works (as the case concerned broadcasts, not e.g. literary works). He summarized the correct test as the consideration of "...the degree of reproduction both quantitatively and qualitatively, having regard to the extent to which the reproduction exploits the investment made by the broadcaster or producer".

In his early consideration of fair dealing, Justice Arnold noted that any use made for the purposes of reporting current events would have to take into account "...whether the extent of the use is justified by the informatory purpose".

Citizen journalism: the backbone of an informed society

Justice Arnold then moved onto the interpretation of the phrase 'for the purpose of reporting current events'. In his judgment, the phrase should be interpreted objectively, yet liberally, so as to allow for the effective facilitation of free speech. The use, even in the remit of free speech and fair dealing, would still have to be assessed to the extent the material is used is justified by the informatory purpose.

In determining whether the 8-second clips were a substantial amount, Justice Arnold saw that they indeed were, as every clip contained highlights and points of interest, and therefore value. Because of this value the copying would be substantial, even though in a quantitative sense it would not necessarily be.

Finally, Justice Arnold addressed whether the use would fall under fair dealing. He briefly accepted that contemporaneous sporting events could be classed as current events for the purposes of section 30(2), however excluding any possible footage of interviews and punditry (within limits). This can also include 'citizen journalism', under which the use within the app does somewhat fall. Justice Arnold deemed that the use of the material was not reporting of current events under the section, as the video clips posted "...were not used in order to inform the audience about a current event, but presented for consumption because of their intrinsic interest and value". The objective of the app was also purely commercial, and designed to utilize the clips to their fullest in the collection of revenues, rather than as a medium for sincere journalism. The copying of the works therefore infringed the copyright owned by ECB.

The case is very interesting, especially in the context of new age media and 'citizen journalism'. Even though the app's use of the works was clearly nothing but an attempt to benefit from the blatant sharing of clips of cricket games, subsequent changes to the app forced users to 'report' more on the action, clearly being driven towards the use under fair dealing. One can think of other social media outlets, such as Twitter or Vine, where extensive commentary might not be possible, as potential candidates that might fall foul of section 30(2) if taken to court. Nevertheless, the case was a curious one, and a lesson for all aspiring app makers to heed copyright when making their apps.

Source: Technollama

Thoughts on the Cancelled Washington Redskins' Trademarks

After having discussed what is inappropriate in trademarks a few months ago, the topic has since emerged in the global trademarks discussion after an update regarding the often debated Washington Redskins mark emerged. The discussion has largely focused on the reasoning of the US Trademark Trial and Appeal Board, and has yielded a certain level of hyperbole and misinformation regarding the mark and trademarks in general. It is because of this this humble writer thought it would be appropriate to expand more on what has happened and what the decision's impact truly is.

In the decision issued a few days ago, the TTAB cancelled the trademark "REDSKINS" (and five other marks) as a result of an appeal proceeding brought over by several Native American appellants who argued that the mark was disparaging to Native Americans, violating 15 USC 1052. The court found that at least 1/3 of Native Americans found the mark disparaging, satisfying the requirement under section 1052. As such the marks were cancelled; however this is not the end of the matter entirely.

Even after the mark has been cancelled the organization retains the rights in the marks during any appeal processes; something which Bob Raskopf, the trademark lawyer for the Redskins, has indicated they will do. Outside of the marks' registration the organization will still enjoy ample protection under both common law and federal legislation. Under 15 USC 1125 any person using of a mark to confuse the consumer as to its origins or quality, causing damage to the original user of that mark, can be held liable under the provision for damages resulting from that use. As such the Redskins could easily prevent the use of its mark even if their marks are cancelled. Under common law a mark is protectable through its use, or as was stated by Justice Pitney in United Drug Co v Theodore Rectans Co: "...the right to a particular mark grows out of its use, not its mere adoption; its function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another's product as his". Through their extensive use of the Redskins mark since the team's beginnings in the 1930s, the team can protect the mark even outside of federal registration. This is highly important, and often forgotten.

A less offensive alternative?

It was however pointed out by Richard Biagi, a partner at a US intellectual property law firm, that: "[o]ne interesting twist is that owning a trademark registration is a requirement by Department of Homeland Security/US Customs in order to impound counterfeit goods entering the  US... So, it is possible that an overseas manufacturer of knock-off apparel or souvenirs bearing the REDSKINS mark could get their products through customs without any trouble – however, that still doesn't prohibit the NFL from suing the manufacturer for trademark infringement". A minor quibble, but worth mentioning in conjunction with the case.

As one can see the effects the decision potentially will have are minimal, at least in terms of the marks protection. The mark will be very much alive and worth protecting; however the negative perception of the mark and the team could damage its monetary worth. In addition 50 US Senators have put some pressure on the team to change its name in a recent letter to the NFL Commissioner Roger Goddell, further exasperating the team's current situation. The decision is symbolic at best, and it is still very likely it will be overturned on appeal.

The discussion surrounding the events has been lively, and has brought trademarks and their worth more into the consciousness of the general populous; yet the discussion has been riddled with inaccuracies as to the mark and its future and over its protectability as a result. Hopefully this article has cleared things up for some, and this writer for one will await the results of the forthcoming appeals process.

Source: Washington Post