By Paul Alan Levy, Public Citizen Litigation Group
Major League Soccer’s copyright-based takedown of a Sounders fan Joshua Vega’s posting on YouTube of a video clip, recorded from his television screen, showing Dynamo player Colin Clark berating a ball boy, makes it timely to discuss what rights fans have to post such videos. The television broadcast of a soccer game is a copyrighted recording, but that does not prevent the public from copying and showing parts of such broadcasts, any more than any more than a magazine’s copyright would entitle it to sue someone who blogs about a game and includes a few quotations from one of that magazine’s articles. Fair use gives fans the right to copy and display the copies in that way; and it also limits the right of broadcasters or sports leagues to use copyright claims to “take down” video clips.
The stakes here are low – it isn’t at all likely that MLS is going to sue a fan for posting video clips of its games. At most is it just likely to invoke the Digital Millennium Copyright Act (“DMCA”) to demand that YouTube or other video hosting sites take down clips that the league considers infringing. Still, fans might still prefer to know what they can do to make sure their video clips are fair use, and to know what recourse they have if, like Joshua Vega, they find their clips taken down.
Fair use is based on the application of four factors listed in section 107 of the copyright code; further guidance can be drawn from the way judges have applied those factors over the years. Sometimes fair use questions are close, but the ordinary fan doesn’t need a lawyer to figure out which video clips comply with fair use. The following five points are the most relevant.
1. Non-commercial use. Non-commercial uses (such as posting a hobby blog, or just posting to YouTube for other users to see) get more favorable consideration for fair use. If the clip is just posted to YouTube, or is included in a hobby blog, this factor favors fair use. That is not to say that commercial uses cannot be fair; indeed, most fair use is in commercial publications, films, musical performances and the like.
2. Transformative Use or Purpose. Clips are more likely protected as fair use if they are posted to comment on, or even criticize, the action shown in the recording. It is best if a comment is actually included as a voiceover or caption in the video, or if it is posted next to the clip. The fair use is even more pronounced if the comment is about the copyright owner; for example, MLS owns the copyright in many broadcasts of its games, so the posting of a clip to comment on a bad tackle, or bad referee call, or other player or management conduct.
3. The Nature of the Work Being Copied. Fair use gives more protection to the copying of the facts than of creative expression or opinion. So, it is generally not a good idea to post a clip containing post-game analysis, unless the purpose of the posting is to comment on that analysis. Fair use is more likely found in a clip that show the “facts” of the game – the play, the fan reaction, and the like.
4. The Amount Copied. The larger the fraction of the copyrighted work copied, the less likely it is that the use is fair. The clip should copy only so much of the broadcast as is needed to make the point on which you want to comment.
5. Effect on the Market for the Copyright Owner’s Work. Fair use should not interfere with the copyright owner’s ability to make a fair profit from sale of the rights to its creative work. For example, it is less fair to present a pastiche of the highlights of a game, because the broadcaster could easily make a profit by posting such highlights online with an ad at the beginning of the video. By contrast, a clip of a single incident in the game is not the sort of excerpt that a copyright holder is likely to exploit commercially. That is particularly true if the segment casts the copyright holder, or its staff, in a bad light (as in the cases of videos posted to criticize a particular referee call, or a bad tackle, or abuse).
One last suggestion – give credit for the video. If the broadcaster’s logo appears on the screen during the clip, that is one way. Another is to post a credit right next to the embedded video.
None of these factors is alone decisive, but if the weight of the factors favors fair use, a fan should be within her rights to post the video. Take, for example, the video clip posted by Joshua Vega last week. The posting was entirely non-commercial, and was made for the transformative purpose of showing misconduct by league personnel, and implicitly by the league if it doesn’t do enough in response. Second, it is doubtful that there is a market for this clip, or, indeed, that MLS would be selling excerpts from telecasts that show misconduct by its players (or, by the apparent view of some fans, by the ball boy); hence posting the clip could not have interfered with the market for copies of the telecast. Third, Vega posted only a 20-second clip from a two hour telecast, and he included just enough to let viewers form their own judgments about what happened. And the telecast is simply a factual depiction of what transpired during the match; Vega made no effort to take advantage of any creative efforts by the film crew. All or virtually all of the fair use factors favor Vega.
Moreover, the law requires the copyright holder to take fair use into account before making the demand for removal under the DMCA; and assertion of copyright to suppress criticism is improper. The MLS response to an inquiry from Soccer America about the Vega video confirms that it behaved improperly. The comments from the president of the league make clear that it initially demanded removal of the video because it did not like the way in which the video portrayed the league, that it made its decision without any consideration of Vega’s fair use rights, and, indeed, that it intends to continue to make decisions about takedowns without regard to fair use. These facts do not augur well for future controversies over video takedowns.
Three online resources provide detailed more about fair use in the Internet context: