THE BOOK--Playing The Percentages In Baseball

Regardless, that wouldn’t prevent him from linking to relevant clips, correct?

I am not a lawyer, but I thought that there were specific outlines for the exact length of a video or audio segment that constitued fair use, where the amount of text was not as clear cut.  Also, I am not sure whether having taken steps to physically prevent any copying of video or audio material (i.e. copy protection) would be considered relevant in any litigation over this issue.  It would be good if a copyright lawyer could clarify these issues rather than have bloggers like us speculate.

I’ve read the Copyright law several times over the years.  If one thing is clear, NOTHING is clearcut.  And, a number, like percentage of text, or length of time, I don’t think has ever, or will ever, be specified as a law.  Maybe case law, but not a written law.

Regardless, there is fair use, which is pretty relevant here:
http://chillingeffects.org/fairuse/

When a copyright holder sues a user of the work for infringment, the user may argue in defense that the use was not infringement but “fair use.” Under the fair use doctrine, it is not an infringement to use the copyrighted works of another in some circumstances, such as for commentary, criticism, news reporting, or educational use. The defense generally depends on a case-by-case judgment of the facts.

Fair use is codified at Section 107 of the Copyright Act, which gives a non-exclusive set of four factors courts will consider in deciding whether a use is fair or not. These factors are

1. the purpose and character of the use,
2. the nature of the copyrighted work,
3. the amount and substantiality of the portion used, and
4. the effect of the use on the potential market for or value of the copyrighted work.

Of course, even with these factors, it is problematic and often unyielding to try to predict what uses a court will deem fair.

The FIRST thing MLB would assert is their rights under DMCA and issue a takedown notice (either from Will directly), or whoever their host provider is.  There is no way MLB would sue Will.

In any case, since MLB and Will have some sort of relationship, MLB would probably be nice and ask Will politely.

In no way, however, should Will assert the claim that what he would otherwise be doing is “illegal”.  There is no lawyer out there that would say that it IS illegal.  It may be illegal, but all that matters is what a judge thinks.  And, I’d be shocked if this case (showing stills of CC’s delivery) would constitute such a thing, with commentary from someone who wrote a book called “Saving The Pitcher”.  Are you kidding?  This would seem to me to be a textbook case of the definition of fair use.

I am a lawyer, but that doesn’t mean I know much of anything.
One factor that is usually considered pretty important, though, is that if you take an image, you’re taking the photographer’s entire work, whereas if you take a selection from Carroll’s article, you’re only taking a piece of the work. One of the factors for deciding whether something is a fair use is the extent of the copying, and copying an image is necessarily 100%.

Is it possible that Will has been issued a “polite” takedown notice before and is simply saving himself the effort?

Not necessarily.  If you take a video of CC throwing (30 frames per second), and it takes him two seconds to throw the ball, that’s 60 pictures of CC to choose from.  If Will wants to show one or two frames of that, it’s not in the “100%” category.

He can also claim “hot news”, since he’s pitching at that point and he’s taking the pictures right there.

I always felt that taking a frame grab from MLB.tv was fair use, whereas taking a still photographer’s image from the game (without permission) was not fair use, for the reason Bill mentioned in #4.

A team: sure it’s possible.  But, there’s no reason to say that it’s “illegal”.  He doesn’t even have to draw attention to himself for it.

By the way, Bill@TDS, wouldn’t it be something fairly easy to do to try to find a way to make it as “fair use” as possible?  We’re not asking the extent to which he could be prosecuted, but what’s the best way to which he would not be prosecuted.

Taking still of a video feed, and then even blowing up the part of the image that he wants us to focus on, would seem a perfectly fair way to stick within the guidelines of fair use.

Otherwise, exactly when are you allowed to take a still, even a still photograph?  Certainly the answer is not never.

I’ll add that THT subscribes to a sports image service, and often I can find the still image I want.  I’d think BP would have a similar subscription, but maybe not.

SB Nation also has access to all the AP photos - I would be very surprised if BPro didn’t have something.

Tango, well, that’s the problem. The standards are so opaque and changing that you can almost never be absolutely sure (unless you’re SNL or Weird Al or whatever, since parody seems pretty clearly safe) that you’re protected by fair use. But, yes, blowing up part of the image, or superimposing your own educational graphics/illustrations/whatever on it, etc. would certainly help.

On your earlier (and Mike Fast’s) point, I’m not sure whether its being one or two frames of a video feed would make a difference. On one hand, yeah, it’s one of thousands of similar images, and you could argue that the still image isn’t even the cameraperson’s “art"--it’s the way the images are put together. But on the other hand, If you took one picture out of a photography book with thousands of pictures, you’re still taking one whole work of art (sometimes that’s fair use, but sometimes not). So MLB could argue that it’s just like that—each individual image is a whole work, so it’s less like you’re taking a quote from Will’s article and more like you’re taking a whole short story out of an anthology.

I don’t think that would be very persuasive, but let’s face it, the problem is not losing a suit, it’s being sued at all. And copyright law is so muddled and confused that you can (almost) never be too careful with that sort of thing.

We agree that the first thing MLB would do is issue the takedown right?  So, there’s no harm here.

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As for the 30 frames representing one second being equivalent to 30 short stories (of different topics/authors) in an anthology book: talk about a streeeeeeeeeeeeeetch.  I’ll give you points for trying.  I presume the judge would chuckle, and say “what else you got”.

The equivalency I would say would be to take 30 frames from 30 different at bats of the same game, or the game player, or some other collection that required originality.  You would be passing off your arrangement as something original, which either means you can claim copyright, or you’d be in copyright violation for trying to create a derivative work and passing it off as your own.

As I said, the key is not just taking the one still, but talking about the still, putting notes on it, blowing it up, etc.

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As for the AP photo service: I didn’t know such a thing existed.  Seeing that BPro always shows a color photo of some player on their front page, then clearly they subscribe to some service.  I presume they’d have a few pictures of CC lying around.

I’m not “trying.” Those are the kinds of arguments plaintiff copyright lawyers use, which is why the whole copyright law is such a mess right now (or rather, the fact that some judges *accept* those kinds of arguments is probably much more to blame). I mean, if you pretend you don’t know anything about technology or art (so, pretend you’re a judge), how do you separate the 30 frames in a second of film from 30 pictures in a magazine spread?

But, yeah, the takedown notice would come first.

A nice and recent article in Slate on this, coming out of the huge controversy over the famous “Hope” poster of Obama.

http://www.slate.com/id/2233152/

Bread, great article.

Will Carroll, if ever you are asked, simply quote Federal Appeals court judge:

“The use must be of a character that serves the copyright objective of stimulating productive thought and public instruction,” Judge Pierre Leval of the federal appeals court wrote in a famous article.

Clearly, talking about CC’s delivery fits into the realm.

As the author says:

The real question is whether the justification is strong enough to justify denying the copyright owner her usual right to demand permission.

Exactly what harm is coming to MLB if we take two frames on a video and post it online, wrapped with educational text?  No MLB lawyer is going to spend the tens of hours in court on this, and no one is going to get sued here.

I shouldn’t say it that way, since it makes it seem that the chance of being sued is some justification.  Stealing is wrong.

I’m just suggesting that for an organization that doesn’t mind suing and issuing take down notices of its best fans, consciously deciding not to sue anyone is likely an indication that they don’t see it as an infringement of rights.

It’s often possible to find photos where the author has granted a Creative Commons license that allows people to use the image.  Here is one example of such a photo for Sabathia (click on the “some rights reserved” link to see the license that the author grants):

http://www.flickr.com/photos/chrisptacek/3449283512/

Here’s the license linked for this photo:

http://creativecommons.org/licenses/by/2.0/deed.en

You are responsible for your own interpretation of the license, but I read it to mean that if you attribute the photo (as described in the license), you can use it.

Here’s a search on “Sabathia” that picks up only photos where the author has granted a Creative Commons license for commercial use.

http://www.flickr.com/search/?q=sabathia&l=comm&ct=0&mt=all&adv=1