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Tilting the Scales Business Issues with a Legal Slant

Gentlemen, Start Your Videos

Posted in *BTW - Noteworthy, Constitutional Rights & Issues, Legal Risk Management, Social Media & The Internet

Billy Bob Cooter is spending a Sunday doing what he loves most – attending a NASCAR race to watch his favorite driver Ricky Bobby pilot the #26 Wonder Bread car.  It’s a close and exciting race as the drivers begin the final lap towards the checkered flag.  With Ricky Bobby in contention, Cooter decides to video the race’s final seconds.  As the car rounds the final turn, Ricky Bobby and another driver “trade paint.”  The collision sends the #26 car violently into the wall which showers the crowd in debris and seriously injures several spectators.  Cooter catches the entire incident on his iPhone and then proceeds to post the graphic video on YouTube, which immediately receives thousands of views.  NASCAR executives see the video on YouTube and have it removed on copyright grounds.  They argue that posting the video violates the limited license granted to Cooter (and all attendees) on the back of his ticket because NASCAR owns the intellectual property of the race and all of its associated images.  Is Cooter within his right to post the video?

Yes.  While NASCAR owns the portion of the video dealing with the race, “facts” and “news” are not subject to copyright protection. This issue was addressed in 1997 when the Second Circuit Court of Appeals ruled that the NBA could not prevent Motorola from broadcasting scores and stats from a game, because while the broadcast was protected, facts and news were not.  While NASCAR could argue that the broadcast of the race was their property, at some point the race changed from a copyrighted event to a non-copyrighted “news” event when the accident occurred.

Earlier this year, Tyler Anderson, a high school student, posted his 1 minute, 16 second video of a horrific NASCAR crash on YouTube.  It was initially reported that NASCAR believed the video infringed on its copyrights and YouTube removed the video stating “This video contains content from NASCAR, who has blocked it on copyright grounds.”  However, NASCAR later maintained that the request was made out of respect to the dozens of injured spectators.  Subsequently, YouTube reposted the video stating “Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the video.”

As observed by John McQuaid in his blog for Forbes Magazine:

There are inescapable contradictions between asserting a legal claim over recording everything that happens in a certain place, and then filling that place with tens of thousands of people with the capacity to shoot video and instantly upload it to the Internet, especially when something newsworthy happens, and when your organization is already managing a strong social media effort that depends on interaction with fans.  This is where the privatization and monetization of everything meets with the democratization of the digital age.

If they’re smart, the NASCARs of the world will make just enough allowances for news events, while doing what they can to keep a tight lid on video sharing and other forms of fan reporting, from photos to tweets, when nothing out of the ordinary is going on.

But even this safety valve approach is probably untenable as devices get smaller and sharing becomes more a seamless part of life.  You cannot contain that urge.  You cannot shut down thousands of devices, or paralyze thousands of tweeting thumbs.  The notion that no information except the official kind can escape the legal-gravitational black hole of the Daytona Speedway is absurd.  It’s not like everyone doesn’t already know that.

Anderson’s video raises all sorts of interesting legal issues and highlights the difficulty of preventing the dissemination of images and video in this age of ubiquitous iPhones and social media.  The issue is particularly interesting given the way NASCAR and other sports have embraced the internet and the posting of fan videos on social media.