I suppose every football fan has heard the disclaimer:
“The NFL prohibits any use of the pictures or descriptions of this game without its express written consent”.
Does this mean that Newspapers have to get the NFL’s permission to cover the game (of course they have to describe it), or is this just referring to descriptions of the game made by the announcers?
If it is the latter, does that mean if I were a television critic I wouldn’t be able to mock the idiotic comments of Dennis Miller in the Newspaper without the NFL’s consent?
They mean the use of the TV picture. You can write an article – even if you watch the game on TV – provided you don’t rebroadcast any of the images.
And, yes, the descriptions refer to the announcers’ commentary. You can quote small snippets as fair use, but you can’t use it as a major part of your article. If you want to criticise Miller, that’s fair use.
Don’t tape Monday Night Football and then charge your neighbors to watch it later. Especially if you taped the Washington-Dallas game earlier this year.
That particular activity is banned by the Geneva Convention.
Actually, that’s not it. Certainly, what you say about the broadcast is correct, but the prohibition in question refers to any and all description of the game, not just the broadcast announcer’s words. (Also, remember, it’s ABC that owns and controls Miller’s commentary, not the NFL.)
I happen to have my press pass from the last week’s game here in front of me and this is what it says, in part, on the back:
“This credential authorizes the use by the Accredited Organization, for news and editorial coverage of the game, of any descriptions, accounts, photographs, films, audio or video recordings, or drawings of the game or other stadium activities related to the game taken, made or compiled by the Accredited Organization.” It goes on to expressly prohibit the distribution of all of the above to third parties, other than the Accredited Organization’s “ultimate consumers (e.g., newspaper readers).”
In other words, by allowing me in with the press pass, the NFL is implicitly authorizing me to distribute any images and descriptions of the game that I generate, within the limited confines of their rules.
So, in answer to the OP, yes, the newspaper does have to get permission to cover the game, in fact, to describe it in any form, whatsoever. On the other hand, “Accredited Organizations” are routinely granted permission to do just that, so it’s rarely a problem for any legitimate news or sports reporting organization. This is just part of the NFL’s extensive system to control their product. And although it certainly appears that the NFL would be within its rights to terminate my access and therefore my ability to “describe the game” if I displeased them in someway (by mocking the league, the owners, the officials, etc), I’ve never heard of this happening. I think I would have to be stealing their product (i.e., rebroadcasting the entire game) or something equally egregious before they took away my accredidation. Still, the threat is there.
Well, of course. Fair use supercedes all else. Assuming that the hypothetical criticism we’re discussing does fall under fair use. However, if you started regularly broadcasting snippets of games over your network without “the advanced written permission of the NFL” (more text from my press pass) I promise you, you’ll hear from the men in the dark suits, claims of fair use or not.
And as for telling your friends about the game, I realize you’re intentionally stretching the point here, but of course you’re not breaking any rules. But if you were to write a newsletter and sum up the game and distribute it to a hundred subscribers, you’d better have the permission of the NFL.
The point is, if you are a legitmate media outlet (and even low subscriber newsletters are) and you can demonstrate that you’re using the info in an appropriate way (and criticizing the announcers, though it may irk the NFL and the network, is an accepted journalistic practice) then you’ll almost certainly be accredited and granted permission.
Again, this is all about control. The NFL just wants to keep the option to say ‘no.’
I don’t think writing about the game is as restrictive as your leading people to believe here no matter how much the NFL would like people to believe otherwise.
If I went to a game as a regular person (i.e. not press credentialed) or even just watched it on TV I would be very surprised if the NFL could stop me from writing my opinions on my web site a few hours later (i.e. sue me for doing so). I could also almost certainly quote the players and announcers if I wished although using some audio/video footage might get me in trouble (not sure though).
We’re talking about Free Speech here. I’d be VERY surprised if the Supreme Court found that an agency could restrict reporting of a news-worthy event to ONLY those people it decided to credential.
The NFL cannot copyright facts – they’re not copyrightable. Therefore, while if Whack-a-Mole described the game to his friend, he’d be “breaking” the NFL’s rule about describing the game without permission, there’s nothing they could do about it. Similarly, if you saw the game on TV and sent out a newsletter about it, the NFL might get upset, but again there’s noting they could do about it, since you’re just describing facts, and facts cannot be copyrighted. Fair use has nothing to do with it at this stage – the Fair Use Doctrine allows people to use copyrighted material without permission in certain limited ways. Here, the material isn’t even copyrightable because it’s just facts about what happened.
–Cliffy, Esq.
P.S. I guess if the NFL has trademarked the team names, they might be able to prevent you from using those names in your article, but there’s probably a way around that. But I can’t comment since I don’t really know anything about trademark law.
What occurs during an NFL game may be news worthy to some extent, but it is also a staged event with controlled access and it’s all owned by someone. The NFL has asserted its rights of control over its events, as evidenced by the conditions of the credentials that all journalists must agree to before being allowed access. Have the courts upheld this? I don’t really know, but as this has been the standard operating proceedure for quite a few years, I would assume so. Either that or it’s never been challanged.
Now all that being said, does the NFL really follow its own restrictive rules in every instance? Probably not. But when faced with a direct challange to their control of the product, they probably act.
Again, the NFL doles out permissions far and wide. It’s not that hard to become an accredited organization (assuming you are legitimate in the first place). It’s in their best interest to spread the word of the game. But they do insist on knowing what you’re doing with their product, if only tacitly.
But are they? The conditions of the credentials explicitly mention the NFL’s rights over all descriptions of the game “including statistical descriptions.” Which leads me to believe that the courts and copyright lawyers don’t see the these games as public, newsworthy events, but rather as private, intellectual property. I’m way out of my league (no pun intended) on this one now, but I wonder if this isn’t the basis of their claims?
The bottom line is, the NFL does claim full control of all aspects of the game. How they back those claims up is another matter.
