Deadspin editor Emma Carmichael recently posted an email exchange detailing her ongoing Copyright Cold War with Major League Baseball vice president Matthew Gould over the online posting of game highlights. “It goes something like this,” Carmichael said. “We post a highlight video from a game; they promptly email us with an informal cease-and-desist note; we take down the video and complain about it.”
After Carmichael posted a highlight featuring New York Yankees pitcher Joba Chamberlain, Gould emailed her to complain. Carmichael responded by asking for clarification of MLB’s authority to censor her. Gould responded, “It comes from a long-standing rights agreement that no video highlight clips from MLB game broadcasts are permitted online.” In a followup email, he added, “MLB Advanced Media is the exclusive licensee of the MLB Entities with respect to uses via the Internet and other interactive media of their game and exhibition telecasts and excerpts thereof.” (MLB Advanced Media and MLB Entities are the same thing; they refer to the joint venture of the 30 MLB franchises.)
So baseball made an agreement with itself that nobody but them could broadcast clips of previously played games, and by invoking federal copyright law, they managed to censor Carmichael and anyone else who dares to defy this mandate. This raises a couple of issues worth exploring.
First, even copyright supporters acknowledge the doctrine of “fair use.” Gould insisted Carmichael could not post a roughly 20-second clip of a three-hour baseball game without his permission. That’s a substantially more restrictive understanding of fair use than authors of written works are allowed to employ. My last post, for example, excerpted two paragraphs from a book under copyright. I don’t think even the most zealous copyright enforcer would argue I did anything improper or illegal by including those excerpts as part of my own commentary. Yet Major League Baseball seems to think there’s no fair use of any excerpts of any game, even by a website that specializes in sports news and commentary.
The second, more philosophical question, is how a baseball game may be the subject of copyright at all, even according to pro-copyright logic. Start with the Constitution’s own language: “[The Congress shall have power to] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright exists for “authors” of “writings.” Who is the author of a baseball game?
Even if you expand the constitutional definition of “writings” to include works fixed in an audiovisual medium, such as a hi-def Internet broadcast stream, there still must be an “author” to satisfy the Copyright Clause. But a baseball game is not an artistic or literary work. As the Supreme Court noted in its famous decision exempting baseball from the antitrust laws, baseball games are “public exhibitions for money.” It is a unique event where the public’s participation is expected if not necessary.
You might be tempted to respond that Major League Baseball itself is the author. But that mangles the definition of “author” beyond recognition. MLB is the exhibitor. There is no author, because one cannot “author” a spontaneous live exhibition. There are scripted exhibitions, like plays (or professional wrestling), where copyright is vested in the playwright. But there is no one person, or even group of persons, who can clearly be identified as the author of a baseball game. It’s akin to a group improv performance. Nobody “wrote” Joba Chamberlain’s highlight; it simply happened.
The plain meaning of author is “a person who writes a novel, poem, essay, etc.; the composer of a literary work composer of a literary work, as distinguished from a compiler, translator, editor, or copyist.” The mere fact that MLB and its media partners compiled or edited together a series of spontaneous performances does not satisfy this definition of authorship.