New Sports Illustrated Column: When spectators flee a race crash, is video of it news or copyright protected sports event?

Many spectators were hurt in yesterday's Daytona race because of a collision. A high school sophomore took a video of the crash and fans screaming and trying to get help. NASCAR wanted the video taken off YouTube, which for a while removed it but then put it back up.

Do we have a legal right to see this video? I explore in a new column for Sports Illustrated | SI.com. Here's an excerpt:

But only about 12 seconds of Anderson's 1 minute, 16 video is actually of a NASCAR race; the rest centers on the crash and fans scrambling for cover from flying debris. NASCAR's ownership over this latter part of the video is questionable, since "facts" and "news" are not subject to copyright protection and the First Amendment safeguards public access to them. The NBA knows this quite well. Back in 1997, the U.S. Court of Appeals for the Second Circuit ruled that the NBA could not claim copyright in its stats and scores, which Motorola had broadcast through a wireless paging device known as SportsTrax. The reasoning? Facts and news are not copyright protected. 

It could be argued that at about 13 seconds into Anderson's video, the race transformed from a copyright-protected NASCAR event into a not-copyright-protected news event. Fans screaming and fleeing for cover is not part of any race, but is certainly newsworthy. On the other hand, NASCAR might contend that because crashes are (unfortunately) not uncommon in NASCAR races, a crash should be considered a continuation of a copyright-protected NASCAR event. This is a difficult area of law and highlights how legal protection for "sports events" and "news events" may not always be the same.

To read the rest of the column, click here.  Here's the video:

The Economics of the Infield Fly Rule

My longer treatment of the infield fly rule, The Economics of the Infield Fly Rule, is now available on SSRN and forthcoming in Utah Law Review. The abstract is below. Comments welcome.

 No rule in all of sports has generated as much legal scholarship as baseball’s Infield Fly Rule. Interestingly, however, no one has explained or defended that rule on its own terms as an internal part of the rules and institutional structure of baseball as a game. This paper takes on that issue, explaining both why baseball should have the Infield Fly Rule and why a similar rule is not necessary or appropriate in seemingly comparable, but actually quite different, baseball situations. The answer lies in the dramatic cost-benefit disparities present in the infield fly and absent in most other baseball game situations.

The infield fly is defined by three relevant features: 1) it contains an extreme disparity of costs and benefits inherent in that play that overwhelmingly favors one team and disfavors the other team; 2) the favored team has total control over the play and the other side is powerless to stop or counter the play; and 3) the cost-benefit disparity arises because one team has intentionally failed (or declined) to do what tordinary rules and strategies expect it to do and the extreme cost-benefit disparity incentivizes that negative behavior every time the play arises. When all three features are present on a play, a unique, situation-specific limiting rule becomes necessary; such a rule restricts one team’s opportunities to create or take advantage of a dramatic cost-benefit imbalance, instead imposing a set outcome on the play, one that levels the playing field. The Infield Fly Rule is baseball’s prime example of this type of limiting rule. By contrast, no other baseball situation shares all three defining features, particularly in having a cost-benefit disparity so strongly tilted toward one side. The cost-benefit balance in these other game situations is more even; these other situations can and should be left to ordinary rules and strategies.