Sports Highlights in private sale video production

[Brian O'Donnell]

Jurisdiction

Pennsylvania

I recently started a side project(which I hope to grow larger) where I make spoof documentaries on client's fantasy sports leagues and their playoffs/championship. In one for my own league, we used NFL highlights from youtube in the video. My question is if we did this for customers and included real NFL highlights would we be protected by "Fair Use" or would be in a trademark/copyright violation scenario since we are profiting off of the use of those highlights? Is there any work around that would protect us like putting a message at the start saying "This Video is intended for private use only" or something along those lines? We would not be posting these videos to youtube or any platform like that. We would be emailing the client the file directly. on a small scale, I think we are ok, but if we wanted to grow this info a full time business we have concerns because of this.

 

[Zigner]

That would likely be an improper use of someone else's intellectual property.

 

[Tax Counsel]

My question is if we did this for customers and included real NFL highlights would we be protected by "Fair Use" or would be in a trademark/copyright violation scenario since we are profiting off of the use of those highlights?

As you describe it, it's pretty much guaranteed to violate the copyright and trademark rights of the NFL and the networks that broadcast the games. You'd want to consult an intellectual property lawyer and show him/her exactly what you have in mind for more definite advice. The fees will be worth it; going up against the NFL and its lawyers would be a very expensive process whether you win or lose.

 

[zddoodah]

I make spoof documentaries on client's fantasy sports leagues and their playoffs/championship. In one for my own league, we used NFL highlights from youtube in the video. My question is if we did this for customers and included real NFL highlights would we be protected by "Fair Use" or would be in a trademark/copyright violation scenario since we are profiting off of the use of those highlights?

Impossible to say intelligently without carefully reviewing what you're doing. "Spoof documentaries" implies parody, which can be fair use. That you're profiting cuts against fair use, but it's not dispositive. There are other factors in play.

Is there any work around that would protect us like putting a message at the start saying "This Video is intended for private use only" or something along those lines?

No. Those sorts of disclaimers don't do any good.

I think we are ok

Based on what? Are you just blindly guessing or did you do an actual analysis under the fair use statute and cases like Campbell v. Acuff-Rose Music?

going up against the NFL and its lawyers would be a very expensive process whether you win or lose.

Agree. The NFL is a HUGE bully when it comes to its intellectual property rights. The NFL claims that virtually any unlicensed use of "Super Bowl" violates its trademark rights and is quick to send cease & desist letters and file lawsuits. In a lot of cases, the NFL's claims in this regard are BS, but most folks don't want to get into a fight with an entity with virtually unlimited financial resources and typically find it easier simply to back down and refer to "the big game."