Can the NFL Sack a Drone?

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Can the NFL Sack a Drone?

Oct 01, 2014

Maria Prada, Pepperdine student

Maria Prada, a student in Jon Pfeiffer's Fall 2014 Media Law class at Pepperdine University, wrote the following essay in response to the prompt: "'Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited'… This warning accompanies any NFL telecast. The language suggests that the NFL can copyright not only its own footage, but also the game itself. For his birthday, Troy received an aerial camera drone, equipped with live viewing and iPhone control. Because of the cost of the drone, his family couldn't afford NFL Ticket. Troy is a die-hard San Diego Chargers fan. To watch the games, Troy flew his drone above the stadium and watched from home. Does the NFL have a viable copyright claim against Troy? Do the San Diego Chargers? Discuss only copyright issues."

Although the warning that appears in every NFL telecast seems to suggest that the NFL can copyright all footage and the game itself, in reality the law would not protect a copyright claim over the game of football itself.

In the 1997 National Basketball Association v. Motorola case, the Second Circuit court ruled that, although the broadcast of a basketball game or event is copyrightable, the game in itself isn't. This ruling applies to all sports associations in the nation, including the NFL.

In other words, while a San Diego chargers game in itself is not copyrightable, any work or footage of it is. NFL owns copyright of the game broadcasts. The footage they record — including camera shots and angles or even the voices of the commentators — belongs to the NFL and can be used exclusively by this organization and nobody else. If Troy was filming the game from his camera then, by law, the footage he records is his own. Recording two players running in a field from your personal camera is different from recording a broadcast or an NFL sports program.

Troy could defend his case by simply stating that a game occurring in real time in itself is not copyrightable. In addition to this, he could also argue that the footage he took with his own camera drone was for personal use only, because he did not sell it or reproduce it for the public, he used the footage for his viewing purposes only. Even if Troy were to share his footage, he could argue that he is in all right to share footage that he is the owner and author of.

If anything, Troy could only get in trouble for trespassing because he did not purchase a ticket and, without one, he would not have been allowed inside the stadium. The fact that he flew his drone over the stadium, however, could make him guilty of trespassing — but only if his drone was flying below 83 feet, which is the standard height used to determine where public airspace starts over a privately-owned property.

In conclusion, Troy would be the lawful owner of the footage he shot with his own camera and thus he would have the legal grounds to defend himself against a copyright lawsuit from the football team or the owner of its broadcast content, the NFL.

Maria Prada is a senior at Pepperdine University majoring in Journalism.

Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. The class covers First Amendment issues as well as copyright, defamation and privacy.

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