One year ago, referee John Higgins officiated a controversial NCAA March Madness basketball matchup between Kentucky and North Carolina. In the wake of Kentucky’s loss, Kentucky Sports Radio hosts allegedly shared Higgins’s personal and business information and encouraged the vitriol directed by fans at the referee. Higgins was bombarded with thousands of calls and numerous death threats, and the social media pages for his Nebraska business were crushed with negative comments.
Higgins sued Kentucky Sports Radio, alleging intentional infliction of emotional distress, invasion of privacy, tortious interference with a business, and civil conspiracy. Higgins sought $75,000 in damages. The case was moved from the District of Nebraska to the Eastern District of Kentucky, where it was dismissed last week.
The judge granted the defendants’ motion to dismiss, saying that Kentucky Radio Network’s “speech on matters of public concern” was protected by the First Amendment and that the hosts could not be held liable for the actions of third parties. The judge, acknowledging that the plaintiff’s frustration was understandable and his damages real, noted that his ruling was narrow and did not extend to all speech on matters of public concern. The judge left open the possibility for Higgins to sue those who harassed him directly.
Thomas “Buddy” Bardenwerper is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).
Image: ESPN Armed Forces Classic – Game Day – U.S. Army Garrison Humphreys, South Korea – 9 Nov. 2013, USAG – Humphreys, CC-BY 2.0.
In the midst of three copyright infringement suits against Epic Games, creator of the celebrated Fortnite video game, the Supreme Court has announced a groundbreaking decision that has put all such litigation on hold.
On March 4, SCOTUS unanimously ruled that copyright infringement suits cannot be filed until a copyright is registered. In light of this decision, countless artists and entertainers will be prevented from bringing suits, including Fresh Prince of Bel-Air actor Alfonso Ribeiro, rapper 2 Milly, and internet personality Backpack Kid.
Each entertainer, all of whom are represented by Pierce Bainbridge, filed a claim asserting that Epic Games had unlawfully profited from their original choreography. They took issue with a feature in Fortnite that enables players to purchase new dance moves (called “emotes”) for their avatar—dance moves that the complainants allege are markedly similar to their own. Fortnite’s in-game purchases racked up $2.4 billion in profit for Epic Games in 2018 alone, so the stakes are high when it comes to questions regarding compensation. Despite the similarities between the artists’ dance moves and those featured in the game, none of the three entertainers have secured copyright registrations on their dances, which means that their pending lawsuits must now be dismissed until such registration is secured.
While the entertainers plan on refiling their suits, they may still face a steep uphill legal battle in light of current regulations governing the copyright of choreography. The US Copyright Office weighs many factors when assessing whether a dance can be copyrighted, such as whether the moves constitute “a series of patterns organized into an integrated, coherent, and expressive compositional whole.” The problem is, the routines that the entertainers allege they created (see Riberio’s “The Carlton”; Horning’s “The Floss”; and 2 Milly’s “Milly Rock”) are short dances, some of which are made up of one move as opposed to a series of distinct movements. This means they will unlikely be protected by copyright law, as they do not have enough complexity to constitute true choreography. The Copyright Office clearly articulates that “individual movements or dance steps by themselves are not copyrightable,” pointing to the waltz as an example.
However, the attorneys at Pierce Bainbridge approached the issue from an additional perspective, asserting that Fortnite’s “emotes” also appropriate the artists’ likenesses. From Lindsay Lohan’s lawsuit against Rockstar Games to Ed O’Bannon’s class-action lawsuit against the NCAA, such charges are more familiar to the legal world than those involving the protection of dance moves. Nonetheless, such suits are largely unsuccessful unless the use of the person’s likeness is flagrant as opposed to mere allusion.
Regardless of the result of the Fortnite suit, the rise of digital media in the age of the internet raises questions as to whether current intellectual property law, last updated for choreography in the Copyright Act of 1976, is outdated. Simple motions, memes, and short video clips can now be quickly monetized, and we are moving increasingly towards an open-source world where conceptions of creativity and ownership are constantly being challenged. In the face of these changes, some critics have said updates to copyright law that draw upon broader, more flexible conceptions of artistic expression may be necessary. While future updates to the Copyright Act may be needed to determine numerous unanswered questions in intellectual property law, Fortnite’s over 200 million registered players can rest assured that their “emotes” are safe for now.
Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).
Close-up on Row of Gamer’s Hands on a Keyboard, Lyncconf Games, CC BY 2.0.
The U.S. Women’s National Soccer Team (WNT) has sued the United States Soccer Federation (USSF) for gender discrimination in the United States District of Los Angeles, citing unequal pay between the WNT and the Men’s National Team (MNT), despite the WNT outperforming the MNT in revenue in 2015. The named plaintiffs in the suit include notable star players such as Alex Morgan and Megan Rapinoe.
The WNT states two causes of action in its complaint. The first is a violation of the Fair Labor Standards Act, as amended by the Equal Pay Act, claiming that USSF engaged in systemic gender-based pay discrimination against the WNT. The WNT is bringing this claim as a collective action claim, with the named plaintiffs seeking to represent the class of similarly represented women. For this count, the plaintiffs are seeking back pay, liquidated damages, pre-judgement and post-judgement interest, and attorneys’ fees and costs.
The second claim is a violation of Title VII of the Civil Rights Act, claiming that USSF discriminated against the WNT on the basis of sex. This claim is being brought as a class action, with the named plaintiffs looking to represent the class of women against whom they allege were discriminated by the USSF. For this count, the plaintiffs are seeking damages for the alleged unlawful conduct, exemplary and punitive damages, a permanent injunction, a declaratory judgment, an adjustment of wages and benefits, costs incurred from the suit, and pre-judgment and post-judgement interest.
In support of its claims, the plaintiffs identify the success and prominence of the WNT on the international stage, including three World Cup wins and participation in the most watched soccer game in American television history, and the revenues generated for USSF as a result. The men’s team, by comparison, has not advanced beyond the World Cup quarterfinals since 1930.
The complaint also states that the WNT perform the same job and duties with similar conditions to the MNT. The rules of their competitions are the same, and the women’s team actually competed in more competitions, and thus more practices, because of their on-field success. Despite the higher-level of tournament success, the bonus compensation structure still resulted in the WNT earning three times less compensation. According to the complaint, each team played and won 20 non-tournament games a year, the WNT would make 38% of the MNT.
The WNT also alleges that it received worse working conditions compared to the MNT, which include training and travelling conditions, game promotion, and support and development.
Andrew Distell is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).
For Immediate Release:
2019 Harvard Sports Law Symposium Scheduled for Monday, April 1, 2019.
On April 1, the Harvard Committee on Sports & Entertainment Law and the Harvard Journal of Sports & Entertainment Law are hosting the 2019 Harvard Sports Law Symposium. An annual event, the Symposium is intended to bring together sports industry–focused practitioners, academics, and students for meaningful discussions on the most pressing business and legal issues in the sports world.
Pursuant to the schedule below, the Symposium will begin at 10:00 AM on Harvard Law School’s campus in Wasserstein Hall, Room 2019 (Milstein West) (see campus map here). The address for Wasserstein Hall is 1585 Massachusetts Ave., Cambridge, MA 02138. To register for the Symposium, please RSVP here.
The Symposium has been made possible by a generous donation from Harvard Law School’s Dean of Student (DOS) Grant Fund.
Schedule of Events—2019 Harvard Sports Law Symposium:
- 10:00 AM—Legalized Sports Gambling: Murphy v. NCAA’s Impact
- Moderator: Michael McCann, Professor, University of New Hampshire School of Law; Associate Dean for Academic Affairs; Director of the Sports and Entertainment Law Institute
- Jodi Balsam, Professor, Brooklyn Law School
- Ronald Gaither, Partner, Baker Hostetler
- Jeffrey A. Mishkin, Partner, Skadden Arps
- Daniel Wallach, Founder, Wallach Legal LLC
- 11:00 AM—Current Hot Topics for Lead 1 Athletic Directors
- Co-Moderator: Tom McMillen, President/CEO, LEAD1 Association
- Co-Moderator: Peter Carfagna, Professor, Harvard Law School; Faculty Director, Harvard Law School Sports Law Program; Chairman/CEO of Magis, LLC
- Ryan Bamford, Athletic Director, University of Massachusetts Amherst
- Martin Jarmond, Athletic Director, Boston College
- Desiree Reed-Francois, Athletic Director, University of Nevada Las Vegas
- Deborah Yow, Athletic Director, North Carolina State University
- 12:00 PM—Weiler Awards Luncheon
- 1:00 PM—Women’s Leadership in Sports
- Moderator: Jodi Balsam, Professor, Brooklyn Law School
- Mady Gilson, Senior Counsel, Bredhoff & Kaiser, PLLC
- Michelle Kwan, Retired Figure Skater, Two-Time Olympic Medalist and Five-Time World Champion
- Liz Moore, Chief Legal Officer, LPGA
- Megha Parekh, SVP/Chief Legal Officer, Jacksonville Jaguars
- Anjali Salooja, Associate Counsel, NBA
- Marti Wronski, SVP/General Counsel, Milwaukee Brewers
- 2:00 PM—Amateurism, College Sports, and Eligibility Rules in Professional Sports
- Moderator: Warren Zola, Professor, Boston College Carroll School of Management; Executive Director, Boston College Chief Executives Club
- Mark Conrad, Professor, Fordham Business School; Director of Sports Business Program
- Christian Dennie, Partner, Barlow, Garsek & Simon
- Paul Haagen, Professor, Duke University School of Law
- Megha Parekh, SVP/Chief Legal Officer, Jacksonville Jaguars
- Dan Rube, EVP/Deputy General Counsel, NBA
- Ricky Volante, CEO, Historical Basketball League
- 3:00 PM—Civil Rights, Social Justice, and the First Amendment
- Fireside Chat with former NBA player and activist Mahmoud Abdul-Rauf, moderated by Professor Intisar A. Rabb (co-sponsored by the HLS Program in Islamic Law and the Harvard Muslim Law Students Association)
- 4:00 PM—Post-Symposium Reception
On Monday, the Supreme Court affirmed the 11th Circuit’s decision in Fourth Estate Public Benefit Corporation v Wall-Street.com, holding that a copyright owner may not file an infringement suit or seek other legal remedies until the Copyright Office registers their copyright. The unanimous decision resolved a circuit split on the issue of when a copyright is “registered” within the meaning of the Copyright Act.
The provision at issue is §411(a), which states, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” Some circuits have interpreted the registration requirement to be met once the copyright owner has deposited the work with the Office, filed the application, and paid the fee. The Court affirmed the 11th Circuit’s interpretation that registration does not occur until the Office actually responds to the application. The Court bases its decision largely on statutory interpretation of §411(a) and neighboring provisions in the Act.
Music trade organizations and performing rights societies including RIAA and BMI filed an amicus brief for the petitioner, arguing that under the Copyright Act, a copyright owner may commence an action once they have fulfilled their statutory obligations of filing an application. The brief voiced concerns that requiring registration from the Copyright Office would create delays for artists that would ultimately inhibit their ability to enforce their copyrights. The Copyright Office usually takes 7-9 months, and in some cases longer, to respond to a copyright application. The brief notes, “[p]articularly in the case of recently released songs at the peak of their earning potential, it is critical to be able to seek prompt judicial intervention against unauthorized uses.”
Monday’s ruling also has potential to disproportionately harm artists without the resources of a label or publisher. The amicus brief noted that a registration requirement would increase expedited copyright applications, which have an $800 fee. Not only is this prohibitively expensive for independent artists, but the increase in expedited applications could strain the resources of the Copyright Office and cause even longer delays for the standard application process.
RIAA’s response to Monday’s decision echoes these concerns, noting that because copyright infringement today occurs at “Internet speed,” the Copyright Office will have to match that speed in processing applications to ensure that artists are able to adequately enforce their copyrights.
Libby Pica is the Executive Editor of Online Content for the Harvard Journal of Sports and Entertainment Law and a current third year student at Harvard Law School (Class of 2019).
Image: “Music – an art for itself – Headphones and music notes / musical notation system” byphotosteve101 is licensed under CC BY 2.0.