Zuffa Copyright Claim Correct Action Under DMCA

Can Zuffa have YouTube take down a video of Nick Diaz being told by a UFC official that the Quebec Athletic Commission would grant the fighters a 0.9 pound allowance of the mandatory 170 pound weight limit?  Short Answer:  Yes.

The UFC’s decision to take down the video of UFC Senior Vice President of Business and Legal Affairs and Assistant General Counsel (what a title) Michael Mersch  has sparked controversy as many have questioned whether its legal.  It is.

Bloody Elbow took issue with the UFC making a copyright claim:

The video was of a conversation, the UFC does not own a copyright on conversations that take place in the stadium seats. Nor does it own a copyright on anything actually shown in the video. The video doesn’t even show something like the Octagon which the UFC could try to make some sort of (wrong) claim that violated their copyright. It is strictly a conversation in the stadium seats.

But the issue is not the substance of the video but where the video was taken.  It was taken backstage at the weigh-ins.  In order to get there, one must obtain access from the UFC.  And while we do not have definitive information on this, it’s likely that the UFC made each person sign something and/or wear a pass to get to the back.  We also assume that the UFC limits its liability as well as has language which states that it owns rights to videos, images, sounds, etc. for those entering the backstage area.  Its not a public area although we might think it is.  Certainly, we all would want to hang out before weigh-ins if we could.  But we cannot.  Why?  We don’t have the necessary access.  

If we may infer from the UFC fighter contracts, the UFC has contemplated the control of pre and post-bout access.  One can look to the Eddie Alvarez contract which was produced in the Bellator litigation to take note that pre and post bout happenings are covered by the UFC.

 The Alvarez Promotional and Ancillary Rights Agreement is a section entitled, Ancillary Rights.  The section provides an exhaustive list of rights that the fighter agrees to grant Zuffa.  Among the rights is Section 2.3(b) which states:

2.3.  The Rights include the following:

 b.  All media, including, but not limited to, motion picture, radio, television (which term whenever referred to herein shall include, without limitation, live or delayed, interactive, home or theater, over-the-air broadcast, pay, pay-per-view, satellite, closed circuit, cable, subscription, Video On Demand, Near Video On Demand, Subscription Video On Demand, multi-point, master antenna, or other), telephone, wireless, computer, CD-ROM, DVD, any and all Internet applications (including,without limitation, netcasting, podcasting, direct download, streamed webcasting, internet channels (e.g., Youtube) or any other form of digital media download or web syndication), films and tapes for exhibition in any and all media and all gauges, including but not limited to video and audio cassettes and disks, home video and computer games, arcade video games, hand-held versions of video games, video slot machines, photographs (including raw footage, out-takes and negatives), merchandising and program rights, in connection with or based upon the UFC brand, the Bouts or activities pertaining to the Bouts, including but not limited to, training, interviews, press conferences, weigh-ins and behind-the-scenes footage for the Bouts (the “Pre-Bout Events”), post-fight interviews and press conferences (the “Post Bout Events”) and any parts thereof on a commercial, sustaining, theatrical or other basis, and by any and all means, methods and devices whatsoever, now existing or hereafter devised. (our emphasis)

An interesting note about the Ancillary Rights that Zuffa will retain from the fighter.  It lasts in perpetuity – even after the fighter dies.  Yes, its repetitive but emphasizes that Zuffa owns the rights forever.

Based on this particular language, it means that someone like Nick Diaz probably signed over his rights to any “Pre-Bout Events” such as a “behind-the-scenes footage.”  Even if the video was shot by someone else, it still features a UFC official and Diaz talking backstage at a UFC weigh-in.  Thus, the UFC could make the copyright claim.

There are steps that an individual can do to reclaim their video.  The first is to send a counter-notification.  

Via YouTube re counter-notification:

A counter notification is a legal request for YouTube to reinstate a video that has been removed for alleged copyright infringement. The process may only be pursued in instances where the upload was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, such fair use. It should not be pursued under any other circumstances.

Bloody Elbow via MMA Junkie’s Stephen Marocco states that the person that uploaded the video has filed a counter-notification.  

If the video does reappear as a result of the counter-notification, the UFC could file suit.

The Digital Millenium Copyright Act (DMCA) is the center of this copyright claim controversy as all of the claims to take down videos online are based on this law.  It is used by media companies to protect its intellectual property.  It can be a confusing law as to what rights an individual may have to upload videos to sites like YouTube.  

This issue of a spectator’s rights at a sporting event came up with NASCAR this past February.  NASCAR has flipped on its stance on the reasons for taking down spectator videos of the crash but the fact remains that NASCAR had licensed its rights to the images.  Poynter.org has an interesting recap of the NASCAR event as well as arguing whether NASCAR had a legit claim to take down a video of the crash.  One of the arguments made is that facts cannot be copyrighted.  One of the commenters (with a legal background) noted a case, NBA v. Motorola, which found in favor of a pager service that would provide live scores and stats of NBA games.  The Court held that while the official recordings of the NBA may be protected by copyright law, actual athletic events are not copyrightable.  The commenter believed that the holding in the case was premised on the logic that the NBA could assert protections over its official recordings, but not over every recording in the arena.  

Certainly this rationale goes against the UFC’s copyright claim here and our argument that it is valid.  But the contractual issue probably would hold the day here.  If Diaz and other contracted UFC fighters in the video signed Zuffa fight contracts, they likely signed over their Ancillary Rights as well.  Thus, the UFC would have a strong case to stake its claim to have YouTube take down the video.