What is the name of your state (only U.S. law)? Iowa
I am a member of a web design forum. Requests for illegal coding practices are strictly prohibited there. Recently a member came to the forums asking for help designing a rss ticker that displays in real time various sports scores from ESPN. While the scores themselves are not copy-written there is some debate as to whether the compilation of them by ESPN is copy-written since a lot of work probably went into displaying and maintaining all of those scores in real time.
What are your thoughts?
At this point and to my current knowledge, it could make a difference where this forum member friend of yours resides.
A leading decision long ago was
Feist Publications, Inc v Rural Telephone Service Co, where the Court held that facts are not copyrightable, and that the labor and the expense involved in gathering the facts does not factor in to what is copyrightable and what is not. Facts can be used by anyone.
Your question essentially centers on whether real-time scores can be considered facts, which are not copyrightable, or a compilation of facts, which can be protected by copyright. And here is where the U.S. Circuits have split.
You have two cases, one from the 2nd Circuit and one from the 11th Circuit, with differing opinions on this. Iowa, as a note, is in the 8th Circuit.
In
The National Basketball Association and NBA Properties, Inc. v Motorola, Inc. d/b/a Sports Trax and Sports Team Analysis and Tracking Systems, Inc. d/b/a STATS, Inc, 105 F.3d 841, 2nd Circ (1997), the NBA argued the rights to control the dissemination of NBA games (including real-time scores) lay with them. The Court disagreed and held that the use by others of real-time scores from games was
not copyright infringement and was
not a misappropriation of NBA rights-protected material and was
not unfair competition.
But, in
Morris Communications v PGA Tour, Inc, 11th Circ, the Court held that the game scores belonged to the sports organization, were a compilation and were, thus, copyright-protected.
Of course, sports organizations want to control how their games are disseminated, and many if not most (including the ESPN) will offer real-time scores through their sponsored websites to maintain this control. By controlling the dissemination, they are also able to control and benefit from the profits. There has been some discussion on this, with a push to expand copyrights for sports organizations to include rights to this aspect of their games. I do not know what sort of progress has been made to this end, however. I can check on that later.
At any rate, in
Nimmer on Copyright (the Copyright tome), Nimmer says that it is "far more reasonable" to hold that sports events themselves are not copyrightable until fixed in a tangible form (for example, recorded for broadcast) and that leans toward the decision made out of the 2nd Circuit with
The NBA - that real-time scores are not copyrightable.
I know this doesn't answer your question
, which is why I hesitated to write anything last night. I can delve into this more to see if there have been recent changes in the status of real-time scores that I am not aware of.
I am going to recommend that your forum friend discuss his specific use of ESPN scores with an IP attorney in his particular area.
