Q: What issues there may be live streaming my own personal audio commentary of a live sports event?

A: The following case may help in your research: N.B.A. v. Motorola Inc. d/b/a SportsTrax, 105 F.3d 841 (2d Cir. N.Y. 1997) (available at https://www.law.cornell.edu/copyright/cases/105_F3d_841.htm). I am not your attorney, do not warrant that this case represents the current state of the law, nor do I recommend that you rely on the statements therein without more research or consulting with your own attorney.

Motorola manufactured a paging device (SportsTrax) that supplied information on NBA games in progress, like: (i) the teams playing; (ii) score changes; (iii) the team in possession of the ball; (iv) whether the team is in the free-throw bonus; (v) the quarter of the game; and (vi) time remaining in the quarter. NBA sued Motorola for a number of claims. Although the case is largely about federal preemption of state law, it contains the following section about the copyrightable aspects of sporting events:

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As noted, recorded broadcasts of NBA games - as opposed to the games themselves - are now entitled to copyright protection. The Copyright Act was amended in 1976 specifically to insure that simultaneously-recorded transmissions of live performances and sporting events would meet the Act's requirement that the original work of authorship be "fixed in any tangible medium of expression." 17 U.S.C. 102(a). Accordingly, Section 101 of the Act, containing definitions, was amended to read:

A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

17 U.S.C. 101. Congress specifically had sporting events in mind:

[T]he bill seeks to resolve, through the definition of "fixation" in section 101, the status of live broadcasts - sports, news coverage, live performances of music, etc. - that are reaching the public in unfixed form but that are simultaneously being recorded.

H.R. No. 94-1476 at 52, reprinted in 1976 U.S.C.C.A.N. at 5665. The House Report also makes clear that it is the broadcast, not the underlying game, that is the subject of copyright protection. In explaining how game broadcasts meet the Act's requirement that the subject matter be an "original work[] of authorship," 17 U.S.C. 102(a), the House Report stated:

When a football game is being covered by four television cameras, with a director guiding the activities of the four cameramen and choosing which of their electronic images are sent out to the public and in what order, there is little doubt that what the cameramen and the director are doing constitutes "authorship."

H.R. No. 94-1476 at 52, reprinted in 1976 U.S.C.C.A.N. at 5665.

Although the broadcasts are protected under copyright law, the district court correctly held that Motorola and STATS did not infringe NBA's copyright because they reproduced only facts from the broadcasts, not the expression or description of the game that constitutes the broadcast. The "fact/expression dichotomy" is a bedrock principle of copyright law that "limits severely the scope of protection in fact-based works." Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340, 350 (1991). "`No author may copyright facts or ideas. The copyright is limited to those aspects of the work - termed `expression' - that display the stamp of the author's originality.'" Id. (quoting Harper & Row, Inc. v. Nation Enter., 471 U.S. 539, 547-48 (1985)).

We agree with the district court that the "[d]efendants provide purely factual information which any patron of an NBA game could acquire from the arena without any involvement from the director, cameramen, or others who contribute to the originality of a broadcast." 939 F. Supp. at 1094. Because the SportsTrax device and AOL site reproduce only factual information culled from the broadcasts and none of the copyrightable expression of the games, appellants did not infringe the copyright of the broadcasts.

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