Crash Video Controversy Puts NASCAR Copyright Grab in Spotlight

kirkspencer2/26/2013 10:50:36 am PST

First, I’ll point out that YouTube reversed itself and put the film back up.

It’s pretty much given that the recording of the crash isn’t copyrightable. News and facts cannot be subject to copyright. The roughly 12 seconds of race in the video that precedes the crash meets every test for fair use, too — assuming copyright applies to the race. And there’s where things get sticky for NASCAR. See, according to current precedence sporting events are not performances. Performances are subject to copyright. Sporting events are not.

The precedence comes from a 1997 case, the NBA vs Motorola, decided in the 2d circuit court of appeals. Since more than half the decision is various points that explain why the game itself isn’t eligible for copyright I’ll not copy and paste here. Just take it as given: you cannot copyright a sporting event. You can only copyright YOUR broadcast of it.