Friday, February 20, 2009

EPL Gestapo Targets Blogs

We're a little late in addressing this, but last week The Offside earned a golden ticket of recognition--a cease and desist letter from the Premier League (or perhaps The FA). Seems the League did not appreciate The Offside making it more famous by using team crests to identify the squads.

So, we'll probably be using crests like this one:

This post is not intended to discuss the legal merits of the League's position. But, I posit the question to the readers, does the EPL/FA's internet policy make sense? Are they approaching the internet in right manner or are they being obstinate and close-minded?

In my mind, the League's attempt to control every bit it can and wring every last cent/pence out of its product is short-sighted. I liken it to the schoolyard bully that beats up everybody until the victims decide to cooperate and fight back. The question is which victims will ban together and fight back.

There are two significant reasons the EPL internet policy is hogwash. First, the goal of the league is to expand the interest in it and the easiest way to that is to make it easier for potential fans to see the product. Luckily for the league, the internet came around when the EPL formed and was able to expand the reach of the league beyond the British Isles to the world. If it weren't for the internet, the league probably would have had a much harder time reaching the world.

Second, the current model of broadcast rights is an efficient model and the market hates inefficiencies. The league sells certain packages of games to different broadcasters that are not always available to every cable/directv/etc. subscriber. Additionally, the costs to watch these games are prohibitive for some. The internet compensates for these inefficiencies by making available the games for viewing--for free. If the league was smart it would develop a strategy that would capture this lost revenue and not attempt to just squash and redirect the viewership, which ultimately will mean less revenue for the league and less exposure. A double loser in business.

What say ye?


bmatt said...

Didn't Hull give The Offside the rights to use their crest? I think that the whole issue was the EPL not granting league-wide crest rights, each team has to decide for themselves.
I think a team like Hull or Blackburn could use the extra exposure and it wouldn't be too much for a team to "monitor" content (making sure that the use of the crest isn't malicious), but large teams don't care about exposure and don't have the time to grant usage.
I agree that the goal should be furthering the game, but you never want to do that at the potential expense of your brand.

This is just playing devil's advocate, I'm actually psyched about the "new" team crests, i Love Livelpool.

Precious Roy said...

Always walk with friends, bmatt.

Yeah, The Offsides did contact individual teams and Hull did grant them useage.

Hull has been really smart about being open and friendly towards new media. They've also availed themselves to American media in particular in a way in which most Prem clubs don't see a need. Makes me not hate then even after they went to the Emirates on took 3 points.

bmatt said...

My Rovers drew Hull early in game week 2, so I didn't really care. But watching that Arse match was amazing, I'm pretty sure I fell in love with a team destined to go back to the Fizzy-pop sooner rather than later (now as long as Blackburn doesn't fall this year...I'll be ok).

Goat said...

Not only is this incredibly short sighted, it might not even be legal. I'm not sure about copyright law in the UK but doesn't this fall under fair use? I'm curious to see what the UF law student contingent thinks. Maybe they can put all that fancy book larnin' to good use.

Keith said...

Goat- The EPL's argument could be that The Offside is a for-profit entity, hence its usage of EPL-registered trademarks is to provide the credibility that enables The Offside to make said profit.

Andrew said...

My legal opinion:

The Prem as a matter of "dilution." Under US law, only the unauthorized use of marks which are likely to confuse consumers regarding the source or sponsorship of the goods/services as issue is prohibited. Its your basic likelihood of confusion -v- dilution test.

More appropriate, IMO, is the case for "tarnishment." The harmfulness of tarnishment is that the registered mark is used in connection with an inferior/less qualitative/illegal product and so the buyer/viewer/internet surfer will have a negative association with the mark, thereby decreasing the selling power of the product (i.e., the Prem).

I could go further, but this is a comment, not a legal brief.

Spectator said...

Nah, tarnishment is more when you negatively associate a mark -- e.g., the Arsenal cannon used as a dildo. This is just your standard failure to license registered trademarks case. Keith is right, the fact that the Offside generates revenue makes it hard for them to claim fair use.

One big problem with IP law is that if you fail to police your rights, than there can be an argument made that you've permitting the works to go into the public domain. I feel a lot of sympathy toward the Offside a and all the good points that the Fan's Attic made, but personally I think the EPL is within its rights on this one.

Smarter option would've been for the parties to simply negotiate some kind of discounted license -- maybe that'll still happen some day!

Spectator said...

Sorry for the lack of verb agreement -- "you're permitting"

hockalees said...

Your honor, I put it to the court that this Saturday's Tottenham v. Hull City game will do more the "tarnish" the reputation of the Premier League than my client's use of any logos!

But you can't hold all bloggers responsible for the behavior of a few, sick twisted individuals. For if you do, then shouldn't we blame the whole Internet? And if the whole Internet is guilty, then isn't this an indictment of our Defense networks in general? I put it to you, Greg - isn't this an indictment of our entire American society? Well, you can do whatever you want to us, but we're not going to sit here and listen to you badmouth the United States of America. Gentlemen!

Precious Roy said...

As long as Robbie Keane scores I don't care how ugly it is.


Goat said...

Just curious: do newspapers have to pay to use NFL, MLB, NBA, EPL, etc. logos? If not, how is The Offside different?

Andrew said...

@Spectator: I took an International IP class three years ago and received a 3.25. Thus, I consider myself an expert.


I've always found with IP law that there are numerous issues in even the simplest litigation, just a matter of choosing the best strategy. I agree with you that the EPL is squarely within their rights in terms of licensing, but this case reminds me of MLB attempting to persuade the courts that statistics are intellectual property. Either way, I find this case extremely interesting.

Also, I always thought the Arsenal cannon was a dildo. Hence, my unbridled support. I must now rethink things.

Spectator said...

Without revealing my profession, or my GPA in Int'l Law (ahem), the stats case is different because MLB was claiming that they owned the statistics themselves -- here, it's clear that each EPL team actually owns its trademark (for example). If I remember correctly, MLS argued that statistics amounted to publicity rights, which is a whole other area of law, and was thrown out by the judge anyway.

@Goat: I'd be shocked if newspapers don't enter into some sort of licensing deal with the leagues. It might even be gratis (i.e. free) licenses to keep the newspapers happy and willing to provide coverage.

Sure seems like gratis licenses along the lines of what Hull City did is the right solution for the Offside.

Spectator said...

Not typing too well on this Friday... that should've been MLB, not MLS.

Andrew said...

@Spec: I'm not sure I made it clear that my comment about Int'l IP and GPA was intended to be sarcastic. But it was. Completely.

My comments re: the MLB stats case in relation to the trademarks of the clubs was meant purely for purposes of comparison. I was unsure if EPL/FA actually had the authority to send a cease and desist letter on behalf of the clubs.

Part of me wishes this case would've arrived a bit earlier so I could have written my research paper on it and not stupid, stupid torture.

Spectator said...

@Andrew: Oh I was trying to be completely sarcastic too.