Wednesday, October 12, 2011

Case of the Week

Murphy v. Media Protection Services, Ltd (European Court of Justice)

This case has been brought to our attention by friend of the blog, Nahel N. Asfour (he's at the University of Vienna). 

FACTS: Sky Sports owns the rights to televise soccer matches throughout England.  If you're a pub owner and you want to show the matches, you've got to pay Sky a monthly subscription of around $1500.  Portsmouth pub owner Karen Murphy found the charges extravagant, and paid to have a satellite installed that could pick up live feeds of the games from a Greek broadcaster.  Murphy was fined a number of times for violating UK copyright laws, and she eventually took her case to court.

HOLDING: The decision held that such restrictions on the import, sale, and use of other EU member broadcasts was contrary to EU law.

SIGNIFICANCE:  According to Prof. Asfour, the most interesting part of the court's argument was that  they denied intellectual property rights in football matches (Para. III/A/3/a/iii). He writes, "While labor is widely regarded as justifying property rights in fruits of one's work and effort, the ECJ held that the English Football League cannot hold copyrights in the live football matches since such games cannot be classified as works. The ECJ explained that 'To be so classified, the subject-matter concerned would have to be original in the sense that it is its author’s own intellectual creation...However, sporting events cannot be regarded as intellectual creations", and football matches - the ECJ continued- which are subject to rules of the game, leave "no room for creative freedom.' This decision raises some difficulties: Is there a profound difference between a theatrical performance and a football match? are their real boundaries today between labor, performance and play? does a football game lack sufficient creativity? are 'rules' the antithesis of 'creativity'? can football players own rights in their performance? and if so, can they transfer those rights back to English Football League? This decision generates a lot of challenges, yet to be resolved, for IP holders within the sports arena and the sports broadcasting industry."

Steve Clowney        

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Years ago as a law student I wrote a comment about a similar case in the U.S. -- Baltimore Orioles, Inc. v. Major League Baseball Players Association, in which the 7th Cir. ruled that the baseball players' right to publicity in game performances was preempted by federal copyright because by filming the game, it became "fixed in a tangible medium." The cite is 36 UCLA L. Rev. 861, if anyone is interested.

Posted by: Shelley Saxer | Oct 13, 2011 10:23:29 AM

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