How to avoid IP risks when using sports data and statistics in your business

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The popularity of sports and zealousness of fans makes sports an attractive industry for those looking for a lucrative business enterprise. Fantasy sports is a prime example. This estimated billion-dollar industry allows fans to wager against other fans, drafting their own fantasy team of real players, with their success contingent on those players’ real-life performances during the season.

Sports data can be a critical economic driver for businesses, whether they transmit game scores, compile performance records, or facilitate sports betting. In many instances, businesses need to publish sports data on their platform, which often means pulling and reproducing data from official sources, such as sports league websites.

Pulling sports data may be challenged by those with an interest in the data, namely the leagues and players. In the current economy, data can be one of the most commercially valuable assets a business owns. Tabulating and providing sports statistics to the public is an element of the leagues’ enterprise. For players, these statistics are a marker of their identity and abilities as an athlete. Leagues and players alike may oppose third-party businesses exploiting statistics to generate profit without permission and compensation.

Any business using sports data as an economic driver needs to ensure that they are using the data legally and not exposing themselves to liability, namely in terms of intellectual property law and related rights.

Existing rights in sports data

If any intellectual property exists in sports data, it would be copyright. Not surprisingly, in the handful of American cases concerning sports data, leagues have argued they own copyright in sports data and businesses infringed copyright in reproducing those statistics.

The good news for businesses using sports data is that it is unlikely that leagues or players own copyright in sports data. Mere information generally cannot be copyrighted in the first place. Sports data are facts, and copyright law does not protect facts. Copyright only subsists in original works.1 A creator must exercise some skill and judgment in a work’s creation for it to be considered original.2

Generating sports data generally involves only mechanical collection and tabulation, not requiring any specialized knowledge or developed aptitude. This was the court’s reason for denying the NBA’s copyright infringement claim in National Basketball Assn’ v Motorola, Inc.4 In that case, the court held the NBA did not own copyright in live game statistics; the event of the game itself cannot be copyrighted, and statistics are an element of that event that any member of the public could obtain simply by attending the game. Motorola reproduced only those statistics in transmitting them to owners of their SportsTrax pagers, so did not infringe any copyright.5 As further reassurance for businesses, the World Intellectual Property Organization takes the same position that the underlying sports events generally do not qualify for copyright.6

Lack of originality likely also precludes copyright from subsisting in leagues’ compilations of sports data. While the underlying data may not be copyrightable, a work “resulting from the selection or arrangement of data”7 (i.e. a “compilation”) may attract copyright if the creator exercised sufficient skill and judgment in creating the compilation. A compilation resulting from a purely mechanical exercise does not meet the threshold for originality. In Toronto Real Estate Board v Commissioner of Competition,8 the Federal Court of Appeal held the Toronto Real Estate Board (TREB) did not have a copyright interest in the MLS database, which contained information about real estate listings. Indications that the creation of the database was merely mechanical included that brokers (not TREB) uploaded the information contained in the database, the database was updated almost instantaneously with newly uploaded information, and the database was consistent with industry norms.

Regardless of whether sports data qualify for copyright protection, businesses nevertheless cannot pass off someone else’s work as their own. Under the common law cause of action in passing off (which is related to unfair trading on another’s goodwill), businesses are liable for misrepresenting to and therefore deceiving the public about the trade source of a good, if the owner of the good has developed a positive reputation in the good and the misrepresentation could harm them.9 Sports leagues have undoubtedly developed a positive reputation in the public’s mind as purveyors of quality and reliable sports statistics. Businesses that use official sports data therefore should not pretend they created the data when in fact someone else did.

Businesses cannot misappropriate players’ personalities to sell products or services without the players’ consent. While not technically intellectual property, professional athletes have an exclusive proprietary right to commercially exploit their personalities for profit, along with the right to control whether and how third-parties can do the same.10 This limits a business’s ability to use things like an athlete’s name or image to market and sell their goods. However, it is entirely possible this control would not extend to performance statistics. In the American case C.B.C. v Major League,11 the court held a fantasy sports company had the right to use information about players, including performance records, in their products, because the information is not owned, is publicly available, and is of public interest.

Using sports data as an economic driver

Despite the aforementioned legal hurdles, there are ways businesses can use sports data while avoiding potential liability.

Even though there is likely no copyright in sports data, businesses can minimize the chances of an infringement claim by limiting the amount of data used or manipulating the data. Copyright law allows others to copy an insubstantial amount of a work. Instead of reproducing all of the statistics, businesses can simply take the minimum amount of data needed for their business purposes. Businesses may also manipulate the data to present it in different ways, such as presenting only the odds of winning, which is common practice in horse racing.

It is crucial to avoid confusing the public as to the source of sports data and whom the business is affiliated with. This could be in the form of a disclaimer indicating there is no association with the leagues or players. Including the data for all applicable leagues and players versus a selection can also avoid misleading the public into thinking specific leagues or players are endorsing the product. In C.B.C. v Major League, the fantasy sports business included all the players in its database and the court found no risk of confusing the public and therefore no misappropriation of players’ personalities.12

Businesses must also use sports data in compliance with any relevant contracts they entered into. For example, in Morris Communications Co. v PGA Tour Inc.,13 an American court upheld a contract between journalists and the PGA that restricted what journalists could do with sports data obtained from the Real Time Scoring System if they wanted to access the RTSS. These restrictions were justified to prevent the media from “free-riding” on the PGA’s significant investment in the RTSS,14 a commonly cited concern amongst sports leagues.

 

1 Copyright Act, R.S.C., 1985, c. C-42 at s. 5(1)
2 Delrina Corp v Triolet Systems Inc. (2002), 58 OR (3d) 339 (ONCA)
3 See Geophysical Service Incorporated v Encana Corporation, 2016 ABQB 230 for an example of raw data that was copyrightable, as it required the “knowledge, developed aptitude, and practiced ability” of seismic workers to create, rather than being merely passively collected.
4 105 F 3d 841 (2d Cir. 1997)
5 National Basketball Assn’ v Motorola, Inc.
6 World Intellectual Property Organization, “Intellectual Property and Sports: Tracing the Connections”, online: World Intellectual Property Organization.
7 Copyright Act s. 2
8 Toronto Real Estate Board v Commissioner of Competition, 2017 FCA 236
9 Ciba-Geigy Canada Ltd v Apotex Inc., [1992] 3 SCR 120
10 Krouse v Chrysler Canada Ltd. et al. (1973), 1 OR (2d) 225 (ONCA); Athans v Canadian Adventure Camps Ltd. et al. (1977), 17 OR (2d) 425 (ONSC) 
11 505 F. 3d 818 (8th Cir. 2007)
12 505 F. 3d 818 (8th Cir. 2007)
13 364 F. 3d 1288 (11th Cir. 2004)
14 Morris Communications Co. v PGA Tour In., 364 F. 3d 1288 (11th Cir. 2004)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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