Periscope, Meerkat, and Vine – IP Infringers?

Between the Women’s World Cup and the U.S. Open golf tournament, we watched a lot of great competition this weekend and are looking forward to more this week. But while others may just see the brilliant play of Megan Rapinoe and Abby Wambach on the pitch or the victorious play of Justin Spieth on the course, we see a new realm of intellectual property issues.

We’ve written before about the extraordinary lengths FIFA employs to protect its copyright and trademarks related to its soccer tournaments, and this Women’s World Cup is no exception. FIFA actually published “public guidelines” regarding its intellectual property. Interestingly, the document indicates FIFA’s position that a plain t-shirt with just the phrase “Canada 2015” would infringe its intellectual property rights! Beware those wishing to memorialize your ski trip to Canada with the name of the country and the year on a t-shirt (although that plain word mark is not registered with the USPTO).

Like FIFA, the United States Golf Association (USGA) also zealously guards it intellectual property rights. That became abundantly clear earlier this year when it revoked the press credentials of freelance sports journalist Stephanie Wei for using Periscope to live stream video and audio of golfers during the practice rounds, arguing that all actions of players, even during practice rounds, are the property of the USGA.

For those of you not familiar with Periscope, it is an app (owned by Twitter) that allows users to live stream audio and video over the Internet via Twitter. Viewers can interact by sending questions or comments during the video. The video content only remains in the app and available to the poster’s followers for 24 hours. Its competitor Meerkat is similar, also using Twitter to share, but the content disappears from the app when the live stream is over. Another video sharing app, Vine, only allows six second videos, but as long as you share them in the app, they remain.

Golf Videos Tee Off!

Back to the USGA, Periscope, and Stephanie Wei. Ms. Wei’s full explanation is here, but in brief, she had downloaded Periscope and decided to use it when she was walking with Australian player Matt Jones during the practice rounds at the WGC-Cadillac Match Play Championship. She shared a video of him teeing off and relayed questions from fans that came in response to the video, which he answered. That day, Ms. Wei also used Periscope to live stream snippets of Jordan Spieth, Ryan Palmer, and Gary Woodland. None of what Ms. Wei shared through Periscope was being filmed or broadcast by the USGA’s media partners, but the USGA punished Wei by revoking her credentials to cover events for the remainder of the golf season saying that it had to protect the rights of its media partners, who pay a lot of money for the rights to broadcast golf.

This weekend at the U.S. Open, the USGA went farther – warning fans that using Periscope to live stream video or otherwise post videos would result in banishment from the event. Wei and others argue that this position is ultimately bad for the sport, shutting fans out and missing out on expanding their market. Major League Baseball seems to agree with Wei. Representatives from MLB have stated that they don’t mind when fans share snippets of video on social media, viewing them as added exposure and marketing for the sport, not intellectual property infringement. But others, like the National Football League, have not publicly taken a position on these kinds of social media applications.

Women’s World Cup Videos: Are There DMCA Implications?

Although there have been reports of Periscope users making video from the Women’s World Cup available, thus far we have not seen reports of FIFA taking action. Given FIFA’s past approach to intellectual property though, it’s only a matter of time.

But really, what action can organizations like FIFA take? In the United States, the Digital Millennium Copyright Act (DMCA) provides the mechanism for removing infringing content from the Internet. But in a world where the content disappears either automatically or after a mere twenty-four hours, there is not much power to a “takedown” notice under the DMCA. By the time you send the notice, the content is already gone. Short of bringing infringement lawsuits against every user who shares video from a sporting event- which could be time consuming and very expensive – there is not much to be done from a rights enforcement perspective.

It seems that the path the USGA has taken – banning those who use live-stream technology from sporting events – is the only way to strictly enforce the claimed intellectual property rights. Given the unhappy popular reaction to the revocation of Ms. Wei’s credentials, that might not be the wisest course of action for sports trying to grow a fan base and capture more of your entertainment dollar.

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