The Premier League, via its quasi-legal minions at NetResult, is attempting to force The Offside to remove the UK football club logos from their site. This is annoying on various levels—as yet another instance in the ongoing war against cultural liquidity by corporate interests that would like to define fair use out of existence, as yet another high-handed gesture of contempt from the world’s most tone-deaf sports league—but now probably isn’t the moment for the essay on intellectual property and creative ferment that I’d kind of like to write.
So I’ll just ask, yet again, how a league that claims to represent modernity can be so clueless about what modernity actually means, and how a league that ruthlessly pursues its own enlargement can be this blind to its own self-interest. A clip of a beautiful goal on YouTube is an evangelist for the league a thousand times more effective than an ad on Sky Sports, but you get the feeling that, too dim to conceive of a future beyond Chelsea-branded Buck Rogers ray guns, the people in charge would rather alienate their own fans and cut themselves off from the internet than lose a tiny and largely theoretical revenue stream that they don’t understand in the first place. It’s as if Random House decided to sue The New York Review of Books for running a picture of one their titles. It’s frustrating.
Read More: Premier League
by Brian Phillips · February 13, 2009
I should really stop being surprised by these people, but God.
(It would be interesting to know if the Offside have consulted any fair use organisations on this, because I have a fairly strong hunch – for what it’s worth, since I’m a year off getting my law degree – that the fine folks at NetResult are overstating their case.)
It seems bizarre too from a marketing perspective. They’re being quite anglo-centric about it, assuming the world has an a priori interest in the Premier League and will flock to it no matter what. Setanta’s underwhelming numbers in their first (and second last it appears) year of exclusive rights should have been a warning side. Sites like the Offside are essentially offering FREE MARKETING to an underexposed North American audience.
That’s warning sign. *gah!*
I look forward to you essay regarding intellectual property. I agree that the league is blind to its own self-interest. But I’m a radical in defense of property, or – more aptly – the ownership of property. The brand is the property of the league, don’t you agree? Therefore the league can do whatever it wants with its brand, even if it means shooting itself in the foot. It’s a stupid move by the league, but what can you do? It’s their property. I assume your essay will be full of disagreement with me, and I look forward to your rebuttal!
“The primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art….[Copyright law] ultimately serves the purpose of enriching the general public through access to creative works.”
- Justice Sandra Day O’Connor, Feist v. Rural Telephone
In the US, use of thumbnail images is considered fair use. It’s been tried and the case law says small online images have no commercial value. Is EPL planning to sell 125 pixel squares of Manchester City’s badge? I’m not sure what they are claiming to lose here.
I suspect they are worried about losing the “ownership” of the brand. From my standpoint ownership means it belongs to you and no one else. You get to do whatever you want with what you own. Anyone else has to have your permission to use your property. The league, I suspect, is attempting to hold at bay all unauthorized use of its brand. They are probably concerned about the “camel’s nose under the tent” syndrome. If they let one person get away with unauthorized use the precedent is established for everybody else.
Sandra Day O’Connor notwithstanding it is my opinion that if the court gets to decide who gets to use the league’s property then it becomes the property of the court not the league.
Okay, so this is going to get complicated fairly quickly because this discussion is taking place on about three separate planes:
1) The one relating to the question of whether, under the law as it actually exists, the Premier League has the legal right to stop a blog from reproducing its logos.
2) The one relating to the question of whether the Premier League ought to have that right under an ideal government based on the most perfectly rational apportionment of rights and duties.
3) The one relating to the question of whether, even if they should or do have that right, it’s still stupid for them to exercise it.
I limited my post almost completely to plane 3, because I don’t have the legal expertise to deal with plane 1 (fair use is a basically a throbbing gray area), and I have some doubts about whether my soccer blog is going to be the vehicle for figuring out plane 2.
However, a man can venture plane-2 opinions. Briefly, I would argue that:
* Intellectual property is a fuzzier concept than physical property, as is demonstrated by the fact that it was much slower to be formalized and protected. (Patents have an erratic and tortuous history, copyright didn’t really exist in any meaningful form until the middle of the 19th century).
* Because of the non-physical nature of ideas, an absolutist defense of intellectual property would double as a pretty intense assault on free speech. (I.e., Pepsi can stop you from using the word “Pepsi” unless you get their permission first, enterprising people can copyright sentences like “It is six o’clock in the evening” and charge the rest of us for using them.)
* That would suck. (Lots of people wandering around in silence, unable to write a newspaper article stating that McDonalds cheeseburgers were now being made from shoe leather and strychnine.)
* Thus, the defense of intellectual property has to be balanced against the freedom to comment on and interact with the world. (If I’m writing a review of a book, I have to be allowed to quote from it selectively even if the author wouldn’t want me to; the book is his creation, but it’s also a feature of reality and of my own mental life, and he chose to make it so.)
* This is also important for society. (The progress of creativity, the cross-pollination of ideas, everything that makes the internet so interesting at the moment.)
* Manchester City’s logo exists in this kind of quasi-public sphere. (It’s been aggressively promoted as a symbol meaning the club, in the same way that the words “Manchester City Football Club” do, and the club exists in the world as a thing I am free to comment on.)
* Thus, although I shouldn’t be allowed to start a business that takes the club logo for its own symbol, I should be allowed to use the club logo to refer to the club in a journalistic commentary, even if it’s for profit. (And on this point I think I would actually go further than existing American case law on several points, though I admit that the line between legitimate and illegitimate use would still be hard to draw, as it always will be given the fuzziness of intellectual property, and don’t disagree with me on this unless you’re prepared to show me a long series of canceled checks made out to the TimeWarner corporation for permission to sing “Happy Birthday.”)
* What’s going on the plane-1 level at the moment is that the internet is exposing the weaknesses of intellectual-property theory in all kinds of aggravated ways, and media corporations are reacting by leveraging their financial advantage to strengthen the protection of intellectual property at the expense of the balancing mechanisms that protect cultural liquidity and various forms of speech. (Disney trying to beat back the concept of public domain, YouTube watchdog groups trying to pare back the definition of fair use.)
* This also sucks. (I really like YouTube.)
* Thus, the Premier League is not only being self-defeating, but is also continuing a depressingly authoritarian social trend. (Don’t get me wrong, I’m strongly in favor of robust protection of copyright, both as a writer whose work is frequently stolen and republished without his consent and as a reader who is not happy about the fact that Cervantes lived in poverty while pirated copies of Don Quixote were selling out all over the world. It’s just that, again, I think the ambiguous nature of intellectual property and the way ideas work in culture mean that there has to be a balance rather than simply an all-in defense that treats humming a tune as an exact equivalent of sitting in someone else’s chair.)
* This is the agonizingly long sketch of the agonizingly long piece I was trying not to write by keeping to a plane-3 perspective and only tersely alluding to planes 1 and 2. (Well played, Brian. Well played.)
I guess they feel they can’t license their brands when they are allowing others to use them for free.
Still crap though
I think this is a trademark issue, not copyright. The Premier League’s (plane 1) argument is that the use could potentially confuse consumers about the Premier League’s affiliation with the offside. You lay out very well the plane 2 and 3 arguments against, but on plane 1 I think the Premier League has the stronger US law argument. The only counter I can think of is how dumb are these consumers, anyway, which argument for practical reasons the offside probably couldn’t pursue.
I think that as society develops concepts of ownership are fluid. In terms of human civilization, the concept of private property has existed for millenia but in comparison to our evolution the blink of an eye. Not long ago individuals could own human beings?
The internet has radically democratized information in all its forms – I think Brian’s argument rests on the assumption/claim/argument that logos and written text are synonymous. However, to be trite “a picture says a thousand words”, also, the EPL has invested funds in the design and development of its precious “logos.”
Copyright law exists in part to encourage the expression of creativity, with the presumption that if I create X object but anybody can copy X object, I will not get reasonable return on it. Thus I have no incentive to create X object. I am aware of this capitalist/Locke underpinning.
As applied, the EPL would argue that if anyone can use their logo, then they have less economic incentives to creative one. From a marketing perspective, this is preposterous, but from a “I bought it and I will do with it what I please” approach, the logical algebra adds up (as stupid/simple as it is).
The policy behind trademark is a little different than the copyright incentive idea. Trademarks denote the source of goods or services. Infringing is a problem because consumers are confused about whether the goods they’re buying are from the usual source, and therefore whether the goods are of the quality the consumer expects from that source. You can see that idea behind the offside arguing that they’re not selling crap with EPL logos on it, adding to the BS factor of the EPL’s letter.
I asked a trademark attorney about this yesterday and basically the problem is that the firm the EPL hires to maintain their IP hires a service that searches for potentially infringing uses, then the attorneys send out form cease and desists. There is probably no interaction with EPL marketing or departments of common sense, where the higher plane thinking Brian mentions would go down.
…which illustrates what I haven’t really addressed, which is the bullying nature of the tactic. They’re not actually making a good-faith attempt to determine whether infringement is taking place according to the law. They’re sending letters out in any case where they think infringement might possibly be taking place, and then counting on the threatening nature of a cease and desist letter to win compliance even in cases where the law isn’t actually on their side.
I gave the legal issue a really wide berth in the post and in my comment above because it’s the one I’m least qualified to address. Fair use with trademarks is pretty similar to with copyrights, with the addition of some twisty caveats like the “confusion” one Colin mentioned. There’s also the possibility that it’s not fair use if it contributes to “brand dilution” (the kind of de-specifying effect whereby all tissues become Kleenex and all copy machines become Xeroxes).
I don’t really see either confusion or dilution transpiring in the case of The Offside’s use of club logos, but fair-use rules are maddeningly ambiguous, and I have no idea what a court would find. What’s frustrating is that I’m certain that the people sending out the letters have no idea, either.
Interesting comments all around. Glad I could contribute!
Isn’t the obvious move to solicit parody logos from designers all over the world, with the best to be used in referring to (and mocking) the clubs in question?
If I know my 80s history– you can’t sample “Pretty Woman” w/o Roy Orbison’s permssion, but you can rewrite an NC-17 version of it and call it parody.
It would be fun if every blog had its Shadow Ministry of Design with a complete parodic repertoire of teams’ logos and unis.
Wouldn’t that make the teams gulp if the fans were getting all their news from unsanctioned sites with unsanctioned logos and their control slipped further? When the first parody -logo t-shirt sells what will they say?
Excellent post Collin.
I am not a copyright attorney, I was just articulating general legal principles behind trademarkets/intellectual property.
I think the problem is that the EPL sells “media consumption”. In a sense, so does runofplay. We as readers are consuming the media of football. When we watch a soccer game, we are consuming the media of football. Thus, in this context, the EPL wants to make sure people dont think Brian has the EPL’s “stamp of approval.”
Brian, I will now stop reading your site and commenting because it does not have the EPL stamp of approval. Ha. Ha. Ha.
I also agree that the agency hired by the EPL probably does a googlepagerank check or whatever and then sends out stock letters. Incorporation in a banana republic of a third world country is a great way to scare off and make fun of these types of agencies.
Perhaps an EPL portrait with an NC-17 version of Pretty Woman is in order, because comparing the organization to a prostitute is just too tempating and appropriate. Although Richard Gere is not a billionaire from Russia or Dubai
I want to make this parody shirts thing happen. cjp is right, this is the natural next step.
I also want to frame all future discussions of fair use law in terms taken from 80s pop culture. For instance, I was wondering how much of a logo you’d have to change before it was no longer legally protected. One pixel? Then I thought, “no, when you cut it that close, Suge Knight winds up dangling you out a window.”
So basically fair use law is why the producers of Miami Vice cannot sue John Travolta for “Chains of Gold” (yes I know early 90′s, but surely a “T-REVOLT-A” classic worthy of mention).
While the general plot, the drug trade in Miami and an individual’s struggle against it, was blatantly ripped off, the quality of the camera work was all 20 pixels higher quality.
That is also why the version of Harry Potter 6 which I bought from a non English speaking Thai immigrant does not violate fair use law – the quality of the handheld camera, hidden in the audience screening, is too poor to match up. Also, the audio is distinct as he also smuggled in his own back of popcorn to snack on.
@cjp YES. Love it.
Perhaps to further muddy the trail we can use player/team pseudonyms.
We could speak of Stefan Goddard playing for Merseyside Red.
Or Koko for Royal Spanish Capital City.
(Koko sounds like a rent boy in the Bahamas. But then so does Kaka.)
Actually most Brazilian pseudonyms would probably be no more ludicrous than their real names.