Live streaming applications Meerkat and Periscope have been banned by the National Hockey League. Credentialed members of the media officially are not permitted to stream live footage from before, during, and after NHL games from inside NHL arenas. A memo from NHL Deputy Commissioner Bill Daly discussed the league’s motion to ban these applications:
“We have been advised that certain individuals attending NHL games pursuant to credentialed access are streaming live footage from inside NHL arenas before, during and after NHL games using technology offered by companies such as Periscope and Meerkat. As a reminder, NHL media credentials prohibit any “unauthorized use of any transmission, picture or other depiction or description of game action, game information, player interview or other arena activity … without prior written approval of” NHL or the team as applicable… Without limiting the generality of the credential language, any streaming of footage in violation of the NHL’s Broadcast Guidelines (including, for example, live streaming inside the arena less than 30 minutes before the start of the game) and Media Access Policy is expressly prohibited.”
It is important to note that only credentialed media is banned from using Periscope and Meerkat within their arenas. It would be impossible for the NHL to enforce banning all fans inside of the arena from streaming live footage on these applications. If all credentialed media were to release their own footage, the focus would be split between those media members coverage and the league’s. Despite the fact that none of these media members intentionally deflected attention away from the NHL’s coverage, having numerous feeds of the same coverage can reduce the viewership of any single feed. Therefore, the league likely is only enforcing this ban in an effort to retain in control of all information released and eliminate the risk of views being diverted away from their coverage.
The NHL’s memo initially gives the impression that the issue could be copyright related with the inclusion of “any streaming of footage in violation of the NHL’s Broadcast Guidelines.” Mentioning broadcast guidelines is fairly deceptive to fans because the implication is that streaming game-related footage or even the game itself would violate the NHL’s copyright in its’ broadcasts. However, the memo does not actually assert copyright claims. Rather, it is a contract issue based on the “Media Access Policy” the NHL has with their credentialed media members.
The @NHL have banned #Meerkat and #Periscope. A sign of things to come for spectator #sports rights holders? http://t.co/0nf3dJy5Up
— Dog Digital (@dogdigital) April 29, 2015
But Meerkat and Periscope both include in their terms of use that it is forbidden to post anything that would constitute copyright infringement (i.e. if a user live streamed a broadcast of a show, it would be considered copyright infringement). When dealing with live action though, deciphering what constitutes copyright infringement is less clear.
Copyright can be arguably be claimed in a broadcast because it is a work “fixed in a tangible medium.” According to U.S. copyright law:
“A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 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.”
However, the NHL cannot claim a copyright interest in the events going on inside the arena because they do not constitute a fixed work. Because by law copyright attaches at fixation (for example, at the time a camera shutter is pressed), they can only claim a right in the actual stream they broadcast themselves. Therefore, as a matter of copyright law, anyone can live stream their own feed of what is happening from inside the arena as long as that person is the one “fixing” it, or hitting the “record” or “stream” button on the camera. The key is this stream must be live from inside the arena, rather than a retransmission of a television broadcast. As stated by U.S. copyright law:
“A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.”
Sporting events are not considered copyrightable works until they are fixed. If a sporting event were to be scripted or choreographed (dance or wrestling for example), that work may enjoy some level of copyright protection before it is broadcasted. So, a live stream of this performance through an application like Periscope could arguably infringe this copyright even if it were filmed from inside the arena. But the streaming of a live NHL hockey game, which is not choreographed, would in fact not be an infringement of the rights of the NHL, NBC, or Rogers Communications.
The NHL must know that, of all users to stream via Meerkat and Periscope, credentialed writers—who all depend on the NHL to make their money, especially those who are employed by the league—have no ill intentions towards the league or their broadcasting partners. For the purposes of the credentialed media, Meerkat and Periscope are opportunities to promote the NHL by giving fans unique insights that likely would not make the television broadcasts. It is not in the interest of any credentialed media member to stream actual game footage on Periscope or Meerkat—hence why the MLB has not banned live streaming applications.
Whether or not this streaming can be done legally by the credentialed media is a matter of contract law, rather than copyright law. The NBA, NFL, and MLB have created policies to restrict the media and fans from live streaming actual game action already. The PGA has followed the NHL with a similar ban for credentialed reporters.
The NHL’s ban of Periscope and Meerkat from inside NHL arenas could have implications on fans. Fans are not necessarily contractually obligated to follow the league’s policies, nor would it be possible for leagues to enforce these restrictions on each fan entering their arena. By banning credentialed media it appears the NHL looked to set a precedent on streaming footage from their arenas.
If the media did not announce the NHL’s ban, fans likely would not even realize footage was not being streamed by media members– instead all of the focus would be on the actual league’s stream (which likely is what the NHL wants). But, this memo being published in ways actually does benefit the NHL as well because fans assume live streaming would be copyright infringement and deters those fans from creating their own live streams since it does not outright say this is a contract issue rather than a copyright issue. So regardless of the memo being published, the NHL likely will benefit because there will be no streams from credentialed media and less streams from fans.