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By Joel I. Rosenblatt, Attorney at Law
Mr. Rosenblatt, a Registered Patent Attorney with the U.S. Patent and Trademark Office, practices in the commercial law of technology and the Internet and the law of patents, trademarks, and copyrights. He is a Florida Supreme Court Certified Mediator, a Florida Bar Approved Mediator for Computer Law Disputes, certified as a Mediator and Arbitrator for the U.S. District Court for the Middle District of Florida and is admitted to all U.S. District Courts for Florida. Any questions or comments may be directed to Mr. Rosenblatt at (321) 727-7626; FAX: 727-8209 or by email to jirosenblatt@earthlink.net
Full Disclosure: The Price of Major League Baseball
My managing partner loves sports and follows all the after game, sports news and replay, shows. He says he has to keep up to show the clients he is “with the game,” whatever. I don’t know and would like him to devote more time to our discussions on the more abstract theories of the law and to Bar Association activities, but his head is always in the sports pages or in ESPN or on his cell phone with the latest stats reports. However, as professional athletes have needs for legal services other than contracts, and, as Kobe Bryant has demonstrated, there will always be a need for a full service lawyer. There is the possibility my managing partner can convince our sports law clients to call us first when their legal needs expand. That might turn my managing partner’s attention from the Sporting News to the Police Gazette and perhaps help pay the bills, as his appetite for Sushi is becoming enormous.
He, meaning my managing partner, is not unlike, many other sports afficionados who stay glued to their cell phones to catch the latest game casts, as in real-time, or slightly delayed, descriptions of baseball games, including who is batting, what pitches are thrown, the game situation and the outcome of each pitch. As reported in Wired News, these online game presentations are a standard feature of sports websites, from MLB's own site, to ESPN, Yahoo and CBS SportsLine. However, as my father always said, life comes with a price, and so it must be for Major League Baseball gamecasts and replays.
In a case of what my managing partner calls “your copyrights gone berserk,” referring to me as if I had proprietary rights in the Copyright Law, he says Major League Baseball is squeezing every last dollar from its fans by demanding payment for game casts, claiming it owns the copyright in the real time play by play and in anything derived therefrom. My managing partner swears that they, meaning Major League Baseball, wouldn’t do this to them, meaning the loyal fans, were it not for one of my fellow traveling intellectual property attorneys who are always looking for ways to generate fees. I reminded my managing partner that it’s the royalties collected from licenses to the game casts, that he hopes will pay, his far too few and little regarded, sports clients their due compensation and which he can try to collect in the way of legal fees, civil or criminal, whichever comes first.
Having just gotten his latest fix of scores, innings, earned runs (whatever that may be and why would a run ever be unearned, as it’s always posted on the scoreboard anyway), and other important real time statistical information, displayed on his cell phone, which I reminded him would be turned off unless he found some more fee paying professional athletes, I was able to get his attention at least until the next update.
I explained it all started not as most thought with Abner Doubleday at Cooper’s Town, but with the 1978 Copyright Act, which added an innovative protection to intangible performances, as in baseball or other sports events, by creating a copyright to the event at the same time and simultaneously it was affixed in any tangible medium. That meant the instant a baseball game was recorded on video tape, for example, the record became protected by the copyright law, the same as if it were a Disney full length cartoon feature. So, any replay of the game or any of its constituent parts, which amounts to a derivative work or display or performance of the video recording, is itself a copyright violation and may be enjoined under the Copyright Law.
Major League Baseball, as reported in Wired News, says “we have rights and we are going to protect them.” But there may be a black lining to that silver cloud. Along with the battle cry of Major League Baseball, and other copyright holders, has been the answer by the public through its resistance to paying for what appears to be bare and unformatted statistics, not something which would have any copyright value. However, it is an ill wind that can’t turn a legal fee.
At this point in our discussion, it is worthwhile to consider a parallel copyright case, recently decided by the 7th Circuit, which takes in the State of Wisconsin. Apparently, a proprietary data base was constructed using the Microsoft Access program. The copyright was in the data base arrangement of the tables and the arrangement of the rows and columns of data in the tables. That was a copyrightable compilation which contained more than the modicum or originality necessary to qualify for copyright protection. The data base application was the storage of real estate sales related data. The proprietary program used data entry masks and the raw data as entered, was sorted by the Access program as modified for this application, into the correct table rows and columns. The data collected and arranged within this proprietary data base was valuable and if properly mined, could be sold or licensed.
As the data itself, before its entry into the proprietary data base was not protected by copyright, it was reasonable to believe that the data outside the proprietary data base was similarly not protected by copyright. The question was then how to remove the data without violating the copyright in the data base. Leaving out contract issues, the only consideration left became extraction and copyright. Fortunately, or unfortunately, depending which side you are on, there are ways, as found by the 7th Circuit, where the non copyrightable data may be extracted, risk and royalty free.
As the proprietary data base was constructed on the Access program, one way would have been to program Access to extract the raw data. Another way could have been to extract the data manually or by a non Access dependent extraction program. Once the raw data was out of the proprietary data base arrangement, it was free for all and any uses.
While real estate prices are not batting averages or earned runs (whatever that may turn out to be), our common interest is in the “stats,” and there is a lesson to be learned from our 7th Circuit, at least as long as it remains subject to our Supreme Court. What we know and what is reaffirmed from this case, is the closer we get to the actual copyrighted work, the risk of a copyright infringement increases. Certainly, a replay of the game video would be a violation, while a deminimus use of a clip in the evening sports news would be arguably not a performance or display of the game or at least would be a permitted fair use. In between there is a range of expression which starts from the video and ends with the clip. It may include a game stats update or a more detailed description of the game itself, for example the movements of the pitcher or the flight of the last home run. The closer to a display of the game as recorded, the greater the danger of a copyright violation.
But as my father used to say, every price has its limit, even for a natural baseball monopoly and there always will be alternatives and other opportunities. As we have seen from the 7th Circuit and as we know from our music down loading experience, if there’s a way to get it, it will be gotten, and even the courts will be reluctant to make us all into common criminals. On this point I always refer to the Universal v. Sony case where the Supreme Court said video recording for the purpose of time shifting, is not an infringement. If the Court said otherwise, we might have the Copyright Cops looking in our windows to see if we were viewing Monday Night Football on Tuesday. However, I may be wrong, in what I said about the courts view of a general lack of respect for copyrights. In that case, my sports junkie managing partner will be able to connect to the latest stats and charge his royalty charged phone bill to our new copyright clients.
Stay Tuned for Next Month's Article!
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Joel I. Rosenblatt is state Supreme Court certified and available for mediation and arbitration. He practices as a registered patent attorney in patents, trademarks and copyrights. Specific areas of practice include commercial law related to electronics, computers, data processing, telecommunications, materials and mechanical engineering, the Internet and entertainment and in the development and licensing of technology and creative works. As Intellectual Property and Licensing Counsel for Fortune 200 corporations, he has acquired numerous patents for electronics and computer related inventions, and has prepared and negotiated design, development and distribution agreements for software, telecommunications, electronic technology, and creative works. As a logistics attorney, he has provided counsel and representation in the field of customs, logistics services, and in loss and damage claims.
Mr. Rosenblatt is available for mediation and arbitration in the fields of general law, intellectual property, entertainment, and technology law, and in logistics law and loss and damage claims. Emphasizing technology and the arts, he serves a wide range of intellectual property and commercial needs for individual and business clients. Mr. Rosenblatt, as a senior level attorney can provide clients easy access and quick turnaround.
Education and Professional Affiliations:
Mr. Rosenblatt holds a Bachelor of Electrical Engineering Degree from the New York Polytechnic University, an MBA from the Wharton School of the University of Pennsylvania, and a JD from the Catholic University of America Law School.
Mr. Rosenblatt is a Registered Patent Attorney with the U.S. Patent and Trademark Office and a member of the Florida and New York State Bars. Admitted to practice in the Court of Appeals for the Federal Circuit, the United States Court of Appeals for the 11th Circuit, the United States Court of International Trade and the United States District Courts for the Northern, Southern, and Middle Districts of Florida. Florida Supreme Court Certified for Circuit Court Mediation and approved by the Florida Bar as a Mediator of Computer Law Disputes. Mr. Rosenblatt has completed Florida Supreme Court Certified Arbitration Training and is certified as a Mediator and Arbitrator in the United States District Court for the Middle District of Florida. jirosenblatt@earthlink.net . |
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