The National Football League (NFL) has not been a stranger to over-exercising their respective powers, and the league’s latest move is no different. In an effort to allegedly protect its declining TV viewership, the NFL sent a memo to teams, which was obtained by Sports Illustrated‘s MMQB writer Albert Breer, outlining specific penalties “for exceeding the limits on video and any moving content[,][which] are particularly strict during the 60 minutes leading up to games, and through games.”

However, teams are still allowed to take advantage of content on the NFL’s own social media accounts by way of re-tweeting or re-posting and also hold some leeway with posting content on Snapchat. Still, that is hardly a consolation for the fines assessed when teams are found in violation of the rule.

  • First Violation: No more than $25,000
  • Second Violation: No more than $50,000
  • Third Violation: No more than $100,000 + loss of rights to post league-owned content

It is widely apparent that the NFL cast the net as wide as possible, as it placed limits on video AND any content that moves. Sources told Mashable.com’s Sam Laird that moving content includes the following: “GIFs from previous games of players celebrating, or even pop culture GIFs such as tangentially relevant quotes from Seinfeld or other TV shows.” They also told Laird that the policy will go into effect on October 12, which conveniently is one day before Week 6 kicks off.

Sources from two teams said they feel the new policy is meant to limit the creativity of what teams can do online during games in order to drive attention and eyeballs to official NFL accounts, as opposed to social accounts operated by franchises.

Mashable.com

Copyright Law

Under the Copyright Act of 1976, a copyright owner has the exclusive right to do the following with his or her work(s): reproduce, distribute, create derivative works, and perform & display in a public setting. As a result, the owner may recover actual damages and profits or statutory damages when a third party infringes upon the owner’s copyright.

17 U.S. Code § 504(b) — Remedies for infringement: Damages and profit

In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

Source: Cornell University Law School: Legal Information Institute

For statutory damages, the copyright owner is entitled to between $750 and $30,000 as the court finds just given the circumstances; however, if the court finds the infringed activity was willful, then the owner may recover up to $150,000.

Fair Use Defense

Even though copyright owners have the aforementioned exclusive rights, a third party may still use their work(s) legally as long as the use comports with the factors outlined in Section 107 of the Copyright Act.

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
  • Nature of the copyrighted work (“the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression”)
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • Effect of the use upon the potential market for or value of the copyrighted work (“whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work”)

The difficulty with copyright cases is that the courts reviews them on an individual basis. Thus, consistency from one case to another is hardly achieved because one court may give greater weight to one of the fair use factors as compared to a different court.


Why The NFL Went Overboard

Simply put, the NFL wants to protect its copyrightable works to the fullest extent and its bottom line in regards to advertising dollars. And the fact that the league’s TV ratings are currently trending downward means that the league is losing TV money, regardless of how much it actually is. Plus, the NFL is obviously in the business of making money so the loss of the TV money needs to be recoup in some fashion. Therefore, it should not stand as a surprise that the league wants to steer more eyeballs, er, social media users toward official NFL accounts rather than simply NFL team accounts.

In effect, the team’s social media presence may now lack authenticity during the games from the fan perspective if teams simply re-post content from @NFL. As a result, fans may not spend as much time as they once did scrolling through and viewing in-game tweets, which would directly conflict with the NFL’s original ploy.

Regardless, it is important to note that the NFL teams participate in national revenue sharing, whereby each team receives the same amount each year. According to ESPN.com’s Darren Rovell, each NFL team received $226.4 million for the 2015 fiscal year as part of the $7.2 billion total. Thus, teams could not argue that the league’s latest rule hinders their ability to earn money during games because, as it turns out, they are all sharing it anyway.

Does An NFL Team Have Any Valid Claims Against The NFL?

Possibly. The first claim that comes to mind for an NFL team to argue is that the rule is arbitrary and capricious, which Black Law Dictionary defines as “willful and unreasonable action without consideration or in disregard of facts or law or without determining principle.”

Breer mentioned Denver Broncos safety Darian Stewart’s $18,000-plus fine incurred for a hit-to-the-head play committed against the Carolina Panthers in the Week One contest. He further described the oddity of how this scenario would actually play out in practice. “[I]f Denver had posted video of the hit, the team could incur a heavier penalty for a first-time offense.”

Thus, a team may argue that the social media fine is unreasonable and that the NFL did not have a determining principle when it implemented the rule. However, the league may argue that they calculated the profits earned from their online content and determined the fines accordingly.

Alternatively, a team could argue that it is not infringing upon the NFL’s copyrightable material(s). While commercial use weighs against the team more than any other factor, a team’s creative use of the content will go a long way in distinguishing fair use. Plus, a team could argue that there are not harmful effects upon the existing or future market because all of the social content would still be under the NFL umbrella, albeit not explicitly displayed on the official NFL social media accounts.

Even then, the NFL would most likely argue that harmful effects upon the existing or future market do, in fact, exist because the less eyeballs venturing through the official NFL social media accounts, the less money funneling through the NFL’s pockets.

In sticking with a constant theme under the regime of NFL commissioner Roger Goodell, it is all about the money.

 

Follow Rex on Twitter (@FordSheild) and connect with him on LinkedIn

Sources

  1. Albert Breer, The NFL’s ratings decline merits watching, MMQB (Oct. 6, 2016).
  2. Sam Laird, NFL to fine teams up to $100,000 for posting social media video during games, Mashable: Entertainment (Oct. 6, 2016).
  3. Fair Use, United States Copyright Office (last visited Oct. 7, 2016).
  4. Darren Rovell, NFL teams each earn $226.4M from national revenue sharing, ESPN.com (Jul. 22, 2015).
  5. Remedies for infringement: Damages and profits, Cornell University Law School: Legal Information Institute (last visited Oct. 7, 2016).

 

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