USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
bargain for the rights to access venues where sports occur, to ensure that their cameras and media equipment are present, alongside their announcers and commentators in commen - tary booths and on the field or court. Intellec - tual property rights are crucial, as broadcasters retain rights over their final broadcasts while using them to showcase trade marks and other intellectual property of the sports rights-holders. 3. Sports Events 3.1 Relationships There are multiple proprietary rights in a sports event. These include: • copyrights in the actual broadcasts (TV, cable, streaming, download, pay-per-view, etc); • athletes’ individual rights of publicity, includ - ing sponsorships and depiction of sponsor names/logos in association with individual players; and • trade mark rights in teams and leagues’ names, logos and other marks, and trade mark rights in the names of certain sports events themselves. In addition, any music or other third-party con - tent that will be played at an event must be prop - erly licensed by the team, league and/or venue. Under US copyright law, sporting events in themselves are deemed to be performances that are not protected by copyright in the absence of such events being “fixed” in some media, includ - ing by digital means. Accordingly, US broadcasts of college and professional sporting events are therefore simultaneously recorded. Physical spectator access to event venues is controlled by ticketing, which creates a con -
tract with the ticket purchaser. Tickets typically contain printed restrictions on filming and pho - tography. An increasing number of US sporting events are broadcast over cable TV channels and through dedicated streaming apps and web channels, where user access is controlled through service subscription and terms of use agreements. Sporting event organisers/leagues are signifi - cantly concerned about illegal streaming/pirat - ing of sporting events. This is addressed through copyright and trade mark enforcement proceed - ings, including copyright “take down” notices issued to internet service providers under the Digital Millennium Copyright Act. 3.2 Liability Sports events organisers generally owe a duty of care to both participants and spectators to ensure that the stadium and playing field are reasonably safe and to avoid creating danger - ous conditions. If a person is injured at a sporting event, whether that person has a valid cause of action against the organiser will depend on whether they can prove all of the following three elements: • the person was owed a duty of care by the organiser; • the organiser breached this duty of care; and • the injury resulted from that breach. To determine whether the event organiser breached its duty of care, a court will apply a test of “reasonableness” . A court may consider whether the organiser implemented risk man - agement policies and procedures to minimise risks and/or maintained its facility at reasonably expected standards.
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