permission slip

BY SEAN SHAPIRO

website, it’s vital to make it clear it is for educational purposes.

Grabbing video from a pro event —the NFL or NBA for example — is a bit trickier. And according to multiple people interviewed for this story, organizations can actually avoid problems by pulling and using the existing broadcast.

Here’s why.

According to Melissa Eckhause, co-director of the Arts and Entertainment Law Clinic at the University of Detroit Mercy School of Law, creating teaching materials and commentary on officiating is protected. Games and rights are owned by another entity, in most cases a major network, and are protected by the Copyright Act.

“Using the NFL for example, the NFL does own the copyright to these video clips. However, there are exceptions to copyright law protection,” Eckhause said. “There are protections within teaching and what these officials would be trying to do in training.”

Eckhause said face-to-face teaching is pretty cut and dried. If you are teaching officials in a class and showing video clips from an NFL game, for example, it’s not an issue.

“Online education wasn’t protected until the Teach Act was enacted in 2002, so that’s newer,” Eckhause said. “But if you are teaching online, it has to be done by an accredited nonprofit and educational nonprofit institute, and then it has to be directly tied to what you are teaching.

“If you are just showing a clip of how a call should have been made or how a referee made the right call, that’s directly tied to your purpose,” she explained. “But if you are trying to kill some time in the class and say, ‘Let’s just watch last night’s game in case you didn’t see it,’ that would not be protected, because that could be looked at as entertainment and not teaching.”

Eckhause said officials organizations need to do their best to make sure the video content only goes directly to the students, in this case the officials taking a course or going through the training. This can be done through a direct file transfer or something that’s password protected, she said, basically protecting how much the teaching material is distributed.

“If you record a lecture or teaching segment and you show a copyrighted clip and then just post it to a public YouTube channel, that would not be protected under the teaching exemption because it’s been put into the public space,” she said.

But what about more public teaching videos and commentaries on officiating? For example, there are millions of clips on the internet and social media now featuring a video of the game and someone providing commentary — they don’t seem to have an issue.

Eckhause said in that case, the person or organization posting the video would likely be protected under another exemption in the Copyright Act.

This is where fair use comes into play, which Eckhause said would cover official teaching videos, but is slightly harder to prove and requires more of a burden of proof than if there was a copyright takedown of a video by a league or network.

There are some key factors the court will consider when determining if something is fair use or not.

“It’s not automatic, but the first thing will be education versus commercial,” Eckhause said. “Educational usage, even if it’s a for-profit institution, will likely still be able to claim fair use … even if you make some money on it, that doesn’t necessarily damn the case.”

Eckhause laid out a hypothetical situation in which there’s been a controversial call in a game. She believes an officials organization should be in the clear to post and use that as a teaching moment.

“You are using small clips from the game and not the entire thing; you are doing the right thing within the spirit of it,” Eckhause said. “If you are showing a couple clips here and there, and not the entire three-hour football game, then I’d say you have a pretty strong fair use case.”

Eckhause issued one caution to officials organizations regarding using photographs in their teaching. They are also copyright protected. In fact, she said using a photograph from the game without permission could be the thing that actually leads to trouble.

“A lot of photographers have been using reverse image searching more recently and hiring companies to find how photos have been used without copyright,” she said. “This is where you can start to run into more issues and logistical headaches.”

Moral of the story here, while leagues and teams frankly expect others to pull and clip parts of their broadcasts, individual photographers are more likely to request a content takedown. It's best to avoid using any photos in teaching materials that you don’t have written permission to use.

Overall, permission is an important word when it comes to making sure you are on the right side of crafting or utilizing training videos.

At the end of the day, Goldberger repeated many times, asking for permission is always the best course of action. Whether it is getting a video clip from the local high school coach or pulling a play from a game on ESPN, it is always best to ask ahead of time and explain your purpose.

“Ask permission, that’s what I’ll say over and over,”

Goldberger said. “There are so many things that can go wrong, and many things that can be avoided by just reaching out and asking to use a clip ahead of time. Leagues and teams want better officials. If you communicate it’s for teaching, you’ve set yourself up well.” As Collins said, “It’s all about making the right call off the field as well as the right one on it.”

Sean Shapiro is a freelance writer from the Detroit area. *