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616 COPYRIGHT & STATE MISAPPROPRIATION LAW: PREEMPTION
in NBA games to transmit to SportsTrax pagers. They have their own network and
assemble and transmit data themselves.
SportsTrax and Gamestats are each bearing their own costs of collecting factual
information on NBA games, and, if one produces a product that is cheaper or otherwise
superior to the other, that producer will prevail in the marketplace. This is obviously not
the situation against which INS was intended to prevent: the potential lack of any such
product or service because of the anticipation of free-riding.
For the foregoing reasons, the NBA has not shown any damage to any of its
products based on free-riding by Motorola and STATS, and the NBA’s misappropriation
claim based on New York law is preempted.
IV. CONCLUSION
We vacate the injunction entered by the district court and order that the NBA’s
claim for misappropriation be dismissed.
Questions:
1.) Why are football games not copyrightable? (The game itself, not the live recording
of it.) Is any sport copyrightable? If professional wrestling were to be entirely a sham
sport, scripted in its entirety (which of course we know is untrue) would it be
copyrightable? What would the copyright cover? The actual bout? The script for the
bout? And how would it be classed? As choreography?
[Some of you will now be playing out all kinds of other copyright scenarios in your
head. Is improvisational theater—in which characters are given general role guidelines,
but no lines—copyrightable? Is a jazz jam session where all the musicians riff off each
other’s contributions copyrightable? Do you have a copyright over the awesomely
destructive and unlikely path your character just took through World of Warcraft? This
is a deadly serious editorial interjection: if you are indeed delightedly geeking out on this
kind of stuff, you should consider a career as an intellectual property lawyer. Really. It is
what makes it fun. Conversely, if all this strikes you as metaphysics for nerds (which it
is) then intellectual property may not be for you.]
2.) Why are the live recordings of sporting events copyrightable? What is the original
expression required by Feist? Who is the author? Does contemporaneous recording
satisfy the constitutional fixation requirement?
3.) The District Court came up with the idea of partial preemption—that copyright
would preempt giving a state right that covered the copyrightable elements of the
broadcast, but not the non-copyrightable elements of the game (such as the game itself,
the facts and so on). Why is this wrong? Isn’t that what § 301 explicitly says?
4.) What are the requirements this case lays down for a state hot news misappropriation
tort that survives Federal preemption?
5.) “[W]e believe that Metropolitan Opera’s broad misappropriation doctrine based on
amorphous concepts such as “commercial immorality” or society’s “ethics” is preempted.
Such concepts are virtually synonymous for wrongful copying and are in no meaningful
fashion distinguishable from infringement of a copyright.” True? Are your favorite
immoral or unethical ideas synonymous with wrongful copying? Even your best
commercially immoral ideas? What does the court mean when it says this?
6.) This case is about preemption of one specific state tort—misappropriation. What can