As discussed when at the previous post on Copyright Requirements, one of the elements to a copyright is the issue of fixation. Fixation means there is some tangible display of the performance being protected. This is typically generated by the image which appears on the television, computer screen, or phone when talking about video. Fixation, generally, requires some form of permanence to the work. Recordings or digital data may fulfill this need for semi-permanence.
A live broadcast seems on its face to be different. The performance, or sporting event as it may be, would not seemed to be fixed. While there may be a company recording the event for posterity and other uses, for a person watching at home the event is not being seen through the recording. There is an argument that fixation occurs when the data is converted from video to data and back to video on the Television. However, this conundrum became quite an issue as technology advanced to the point where VHS recordings could easily be made and now with digital cable boxes recordings can be made with the push of a button.
The law reflects this concern of the major sports leagues. In the Copyright Act, the definition of “fixed” includes the sentence: “A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.”
This sentence means the organization or person putting on a live event which is concurrently broadcasted will also make a permanent recording. This creates a copyright in the recording and also the live broadcast itself.
This Copyright in a live broadcast may not be the strongest. One reason is at any current sporting event there will be people using their smartphones to create personal recordings. This creates multiple recordings of the same event and as there has not been an illegal recording or copy of the live broadcast or official copy, an argument can be made no violation of the copyright has occurred.
Copyright law also has significant nuance in regards to the strength of protection. This issue is too much to get into here, but know the more expressive the work is, the more protection may be granted. In sports, the expression is more in the storylines around the event. Will player A shrug off their struggles from last year to win a championship. With team B overcome the odds and win the game. These stories and expression of interest does not come from the game itself.
There is a copyright in a live broadcast and there is a clear value to such a copyright. However, there is a question as to the extent of and protection of such a copyright.