The Cubs’ intellectual property claims:

ESPN reports:

The Chicago Cubs and owners of the famous building-top seats have come to a 20-year agreement that would require the owners to pay the team millions of dollars each year, the Chicago Tribune reported in Monday’s editions.

The owners of 11 buildings will pay the Cubs 17 percent of their gross revenue, which, with approximately 1,700 rooftop seats, could cost owners more than $2 million a year, Alderman Thomas Tunney of the 44th Ward told The Tribune.

The settlement stems from a December 2002 lawsuit brought against the owners by the Cubs after the team’s plans to expand the bleacher sections in Wrigley Field failed. The team accused the owners of stealing the team’s product, copyright infringement and unjust enrichment at the Cubs’ expense.

Owners of two of the buildings have not agreed to the settlement and plan to fight the agreement in court. . . .

The two dissenting owners are in the right on the copyright issue, I think, and ought to win on that if they fight it. But the “unjust enrichment” claim is much closer.

     Copyright: The Cubs’ copyright infringement claim is, I think, nearly frivolous. First, it seems likely that a sports event is not a copyrightable work. The broadcast of the event may be, because of creative decisions involved in how to film the event. But the action itself is probably not, because it’s not creative expression. As the U.S. Court of Appeals for the Second Circuit held several years ago as to basketball games,

In our view, the underlying basketball games do not fall within the subject matter of federal copyright protection because they do not constitute “original works of authorship” under 17 U.S.C. ? 102(a). Section 102(a) lists eight categories of “works of authorship” covered by the act, including such categories as “literary works,” “musical works,” and “dramatic works.” The list does not include athletic events, and, although the list is concededly non-exclusive, such events are neither similar nor analogous to any of the listed categories.

Sports events are not “authored” in any common sense of the word. There is, of course, at least at the professional level, considerable preparation for a game. However, the preparation is as much an expression of hope or faith as a determination of what will actually happen. Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script. Preparation may even cause mistakes to succeed, like the broken play in football that gains yardage because the opposition could not expect it. Athletic events may also result in wholly unanticipated occurrences, the most notable recent event being in a championship baseball game in which interference with a fly ball caused an umpire to signal erroneously a home run.

What “authorship” there is in a sports event, moreover, must be open to copying by competitors if fans are to be attracted. If the inventor of the T-formation in football had been able to copyright it, the sport might have come to an end instead of prospering. Even where athletic preparation most resembles authorship — figure skating, gymnastics, and, some would uncharitably say, professional wrestling — a performer who conceives and executes a particularly graceful and difficult — or, in the case of wrestling, seemingly painful — acrobatic feat cannot copyright it without impairing the underlying competition in the future. A claim of being the only athlete to perform a feat doesn’t mean much if no one else is allowed to try.

For many of these reasons, Nimmer on Copyright concludes that the “[f]ar more reasonable” position is that athletic events are not copyrightable. 1 M. Nimmer & D. Nimmer, Nimmer on Copyright ? 2.09[F] at 2-170.1 (1996). Nimmer notes that, among other problems, the number of joint copyright owners would arguably include the league, the teams, the athletes, umpires, stadium workers and even fans, who all contribute to the “work.”

Concededly, caselaw is scarce on the issue of whether organized events themselves are copyrightable, but what there is indicates that they are not. See Prod. Contractors, Inc. v. WGN Continental Broad. Co. , 622 F. Supp. 1500 (N.D. Ill. 1985) (Christmas parade is not a work of authorship entitled to copyright protection). In claiming a copyright in the underlying games, the NBA relied in part on a footnote in Baltimore Orioles, Inc. v. Major League Baseball Player’s Assn. , 805 F.2d 663, 669 n.7 (7th Cir. 1986), cert. denied , 480 U.S. 941 (1987), which stated that the “[p]layers’ performances” contain the “modest creativity required for copyrightability.” However, the court went on to state, “Moreover, even if the [p]layers’ performances were not sufficiently creative, the [p]layers agree that the cameramen and director contribute creative labor to the telecasts.” Id. This last sentence indicates that the court was considering the copyrightability of telecasts — not the underlying games, which obviously can be played without cameras.

The Baltimore Orioles case that the Second Circuit cites does indeed suggest the contrary; but the Second Circuit is probably right in dismissing this as tentative and nonbinding dictum.

     But more importantly, even if a game is copyrightable, public viewing of the game doesn’t violate any of the copyright owner’s exclusive rights under the Copyright Act. It’s not a reproduction. It’s not a preparation of a derivative work. It’s not distribution of copies of the work. It’s not a public display of a copy of the work. And it’s not a separate public performance of the work — the performance is taking place on the field, with the copyright owner’s authorization, and letting people onto your roof to see it isn’t a separate performance. It strikes me as an open-and-shut copyright case, so solid that it should lead to the building owners not just winning on the copyright issue if the case comes to court, but also getting awarded attorney fees on the copyright portion of the case.

     Misappropriation: The harder question is whether the building owners’ sale of viewing seats constitutes “misappropriation,” a separate state-law tort, which does sometimes prevent people from supposedly unjustly enriching themselves by free-riding off the investment of others.

     In Illinois, the boundaries of the tort haven’t been well-defined. The general principle is that courts must consider whether “the plaintiff’s pecuniary reward for producing its intangible product would be severely reduced if other competitors could avoid production costs” by merely free-riding on the plaintiff’s work, but at the same time keep in mind “that freedom to imitate and duplicate is vital to our free market economy.” Board of Trade of City of Chicago v. Dow Jones & Co., Inc., 456 N.E.2d 84 (Ill. 1983). But naturally, these considerations are almost always in tension with each other. In this case, neither factor is very strong: The building owners’ actions aren’t likely to dramatically undermine the Cubs’ revenue, so the plaintiffs’ misappropriation case isn’t that strong; but the building owners aren’t really being that creative in their imitation and duplication, either, so the defendants’ defense isn’t that strong, either. The Cubs can argue that it’s unfair to let neighbors free-ride off the Cubs investment. The building owners can argue that they have traditional rights as property owners to let people onto their property to watch whatever is visible from the property. It’s therefore quite hard to predict just how the courts will decide the misappropriation claim.

UPDATE: Reader Alec McAusland suggests that the building owners may have reasons for settling beyond the fe
ar of legal liability. Here’s a Chicago Tribune article:

Also, said one rooftop source, the Cubs have agreed not to install windscreens blocking rooftop views as they did during the 2002 season.

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