The Barclays Premier League’s warning that fans could be prosecuted for sharing their own mobile clips of goals isn’t just morally wrong and insulting to fans: it’s legal bullshit.
It also demonstrates an astoundingly short memory, since the Premier League’s mistake rests on a European court ruling in which it was involved, just two years ago.
It’s pretty simple, too: the court decided that any unscripted live event like a football match or news can’t be copyrighted.
The name Karen Murphy must loom large in the memory of the Premier League’s lawyers after this redoubtable British pub landlord dragged them the courts for six years.
Her cause: the right to show Premier League matches from a cheaper overseas TV provider instead of paying Sky’s business rates.
The final European Court of Justice decision was a mixed bag for Murphy, but it established a key element of European copyright law for news and sports broadcasters.
It revolves around the legal idea of copyrighted “works”, which the ECJ said must have a creative element.
By their nature, football matches and other sports are unpredictable events where no-one knows the outcome from moment to moment, so they don’t qualify for copyright.
So if you’re filming a sports event of any kind, neither you nor anyone else holds the rights to that footage.
There may be many copyrightable elements: advertising hoardings, music, even the players’ shirts and possibly their haircuts, but don’t worry.
No-one’s watching your video for these items, so they’re covered by the concept of ‘incidental inclusion’ because they’re not the subject of the video.
What’s more, if you edit the video, add your own music (copyright cleared, of course), or even better stick a card reading “Dave’s great goals” at the start of every clip, then you’ve created a “work” that’s eligible for copyright.
You don’t need to mark your work to own the copyright under European law, but Vine and YouTube will let you stick a watermark or other device on it, so why not.
After all, that’s what the Premier League, Sky and other broadcasters do with their highlights packages, and by slapping logos and graphics all over their footage they make it impossible for anyone to share it without breaching copyright.
And don’t charge for your clips or tick the “monetise” box in YouTube, because other companies own the rights to commercially exploit the Premier League online.
So don’t be cowed into putting away your phone and closing your Vine account by the fatuous oxygen-thievery of some Savile Row-suited corporate twunt.
There is one catch
Football matches aren’t held on public property: they’re private locations and the owners can impose any conditions they want through your purchase of a ticket.
They could say you can’t film or photograph anything – and even forbid you from sharing it later – and because it’s a contract between you and the owner or event organiser, they could sue.
They’d be idiots to sue their own fans, but these aren’t people who act in their best interests long-term when there’s a short-term gain to be made.
And lets hope no-one has to spend six years going through the courts to make that point.
Disclaimer: Alex Lane is not a lawyer, but he won’t let that stop him ranting about dumb-ass rules and regulations.