Sports Writer's Use of National Football Scouting's Reports Ruled Fair Use
National Football Scouting sued sports writer Rob Rang and Sports Xchange for copyright infringement and trade secret misappropriation for disclosing National Football Scouting’s Player Grades for eighteen college players. The complaint in this case is described in my post Football Scouting Organization Files Suit for Copyright Infringement and Trade Secret Misappropriation Over Leaked Scouting Reports.
Both Rang and National filed summary judgment motions in this case. Rang argued that the Player Grades are not copyrightable, that Rang’s use of the Player Grades was fair use and that the Player Grades are not trade secrets. National argued the complete opposite. The district court ruled that National’s Player Grades are copyrightable, that Rang’s use of the Player Grades was fair use and that the Player Grades are information that can be protected by trade secret law, but that factual disputes precluded deciding the issue on summary judgment. The district court dismissed National’s copyright infringement claim. The trade secret claim remains for trial.
As discussed in my post Life is good's Jake not Substantially Similar to Penmen, Not Infringing, the copyright owner must prove (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Copying of the Player Grades was not in dispute, but ownership of a valid copyright was. Rang argued that the Player Grades were not sufficiently original to be protected by copyright. Works are protected by copyright only when they contain a minimum amount of creativity. The district court indicated that “a numeric expression of a professional opinion can be copyrightable.” (Opinion pdf page 5.) The district court found that the Player Grades are copyrightable, as there is an element of creativity in weighing the subjective factors in reaching an opinion on a player’s likely success in the NFL.
Under 17 USC §107, a fair use of a copyrighted work, such as for criticism, comment, news reporting, teaching, scholarship or research, does not infringe the copyright. The four non-exclusive factors to consider are:
(1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2)the nature of the copyrighted work;
(3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4)the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Purpose and character of the infringing work. The district court ruled that this factor weighs strongly in favor of a finding of fair use, due to the transformative nature of Rang’s articles. Courts examine whether the new work adds something new, such as new expression, meaning or message. The district court found Rang’s use transformative. He did not simply publish a list of Player Grades, but provided original commentary on the players along with their Player Grades. The district court ruled that Rang’s use of public domain material did not prevent his articles incorporating the Player Grades from being transformative.
National argued that Rang acted in bad faith by ignoring the numerous cease and desist letters National sent him. The district court indicated that Rang was entitled to ignore the letters if his use was a fair use.
Nature of the scouting reports. Because the Scouting Reports were unpublished, the district court ruled that this factor weighs against a finding of fair use. The copyright owner has the right to determine whether to publish the work and to control the timing, format and location of first publication. Rang deprived National of these rights by disclosing some of the Player Grades.
Amount of the work infringed. The district court ruled that this factor weighs slightly in Rang’s favor. Rang published the Player Grades for eighteen players, out of Reports that included six pages of detail for hundreds of player. The portion used by Rang was very small compared to the whole. Rang did not use the Player Grades as the focal points of his articles, but as a starting point for providing original commentary on the players and their draft prospects.
Effect of the infringement on the market. The district court ruled that this factor weighs heavily in favor of Rang. The district court found that, even if the Scouting Reports and Rang’s articles are in the same market, Rang’s articles are not a market substitute or market replacement for the Scouting Reports. The Player Grades are not the only part of the Scouting Reports that have value. Rang’s articles do not give a comprehensive picture of the Scouting Reports.
Balancing of the factors. The factors weighed in favor of Rang’s fair use when balanced together. The unpublished nature of the Scouting Reports was the only factor tipping in National’s favor. However, the unpublished nature of the Scouting Reports does not defeat the other factors.
Misappropriation of Trade Secrets
A trade secret is information that derives economic benefit from not being generally known and is the subject of reasonable efforts to maintain secrecy. A plaintiff can be awarded damages for the misappropriation of trade secrets. RCW 19.108. Rang argued that a Player Grade does not qualify as information protected by trade secret law and that trade secret law protects only factual information and not subjective opinions, such as the Player Grades.
The district court ruled that the fact that National assigned a grade to a player is “information” under trade secret law. The question of whether grades assigned by National are protected under trade secret law is a question for the trier of fact. Factual disputes exist regarding whether National took reasonable measures to preserve the secrecy of the information and whether the grades receive economic value from not being generally known. The district court denied Rang’s motion for summary judgment on this issue.
This case is National Football Scouting, Inc. v. Rang, No. 11-cv-5762-RBL, Western District of Washington at Tacoma.