Those series of aggressive stupendous plays by Wilt Chamberlain and Kareem Abdul-Jabbar are a must-see for every basketball junkie. However, the method of viewing them raises all kinds of exciting fair use questions. Yes, exciting.
You see, I have received no express (written, texted, telegraphed or otherwise) consent from the NBA to disseminate this footage of their basketball games. I doubt the editor of that YouTube video received similar permission as well. So, are we violating the NBA’s copyright of those images? Am I perfidious scoundrel unduly benefiting from the efforts of others?
The answer to all these questions and others is… it depends.
Copyright and fair use are the two uneasy brethren of innovation. The Association of Research Libraries succinctly identified how these two concepts so often at odds are required to spur creativity:
The goal of copyright law and policy is to foster the progress of science, the creation of culture, and the dissemination of ideas. Its best-known feature is protection of owners’ rights. But copying, quoting, and generally re-using existing cultural and scientific material can be a critically important part of generating new research and culture and promoting intellectual exchange.
*sips glass of lemonade* Oh, do go on thought-provoking block quote…
In fact, the value of these practices is so well established that it is written into the social bargain at the heart of copyright law. We as a society give limited property rights to creators to encourage them to produce science and culture; at the same time, we guarantee that all works eventually will become part of the public domain and, in the meantime, we give other creators and speakers the opportunity to use copyrighted material without permission or payment in some circumstances. Without the second half of the bargain, we could all lose important new work and impoverish public discourse.
So, if I were to somehow claim that footage as my own creation or tried to financially profit from it, I’d probably be in all kinds of hot water. However, if I’m merely trying to further discourse on how awesome Wilt and Kareem were, I’d be in fair use territory. This idea seems fairly clear-cut in this instance.
But what about instances of hip-hop sampling? Is interpolating a drum break really copyright infringement or is it a music artist making fair use of a musical snippet to create something otherwise new? Even more grotesque, is the progeny of genetically modified organisms forever copyrighted to the corporation responsible for its creation?
In an era where digital data duplication and dissemination has become effortless, I think the fair use doctrine should rein ever more triumphant. But that’s my opinion. The NBA has been known to quickly yank videos of its product that it finds embarrassing thus preventing fair use and discourse. But the NBA has been nowhere near as draconian as MLB. The MLB is notorious for restricting baseball footage to its officially sanctioned YouTube feeds.
The NBA should receive kudos for recognizing that fair use is a golden goose for its league. The more discourse about your league, the more interest, which means more dollars in the end. Hopefully, all corporations come to recognize the benefits of fair use to ginning up their profiles and profits.