Information about NFL draft prospects is not something that one would normally think of as a literary work, unless perhaps written up by, say, Coach Ernest “Papa” Hemingway. But a federal court recently ruled that grades assigned to NFL draft prospects by a scouting firm are sufficiently creative to warrant copyright protection as a literary work.
The ruling came in an action brought by National Football Scouting, Inc. against Robert Rang, a part-time sports writer who publishes articles about the NFL Draft for defendant Sports Xchange’s Web site. National Football Scouting evaluates college football players and assembles scouting reports for its shareholder members – twenty-one NFL teams. Each report is six pages in length and assigns an overall grade to the player based on how likely that player is to succeed in the NFL. During 2010 and 2011, Rang used eighteen of National’s “Player Grades” in eight of his articles, ignoring a series of cease and desist letters along the way. After National filed suit alleging copyright infringement and trade secret misappropriation, both parties moved for summary judgment, looking to end the ballgame in the first quarter.
Defendants tried sacking National’s copyright claim on the first play by asserting that the Player Grades are not protected by the Copyright Act. The court, however, sided with National in holding that the Player Grades are sufficiently creative to satisfy copyright’s originality requirement. Specifically, the court rejected defendants’ attempt to analogize the Player Grades to the telephone list in the U.S. Supreme Court’s seminal ruling in Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 U.S. 340 (1991). In Feist, the Court ruled that a white pages list of names, addresses and telephone numbers were facts that were not sufficiently original to warrant copyright protection. Distinguishing Feist, Judge Ronald B. Leighton found that the Player Grades “are not facts,” but instead “represent National’s opinion, based on its data and its expertise, of a player’s likely success in the NFL.” National’s weighing of “subjective factors, such as personal character, leadership, and poise” in determining the Player Grades satisfied the minimal degree of creativity required under copyright law.
With National moving the ball down the field, the defendants sent out their “prevent defense” – the fair use doctrine. The statutory fair use doctrine sets forth a list of non-exclusive factors that are examined to determine whether the use is fair and thus protected against an infringement claim. In examining the first factor – the character of the infringing work – the court concluded that the defendants’ undisputed commercial use was outweighed by the fact that Rang, in providing original commentary on the draft prospects of players, had incorporated the Player Grades into a transformative work. Although the scouting reports were unpublished, the second factor – the nature of the copyrighted work – was the only one that bounced National’s way. The third factor “weighed slightly in Rang’s favor” despite the fact that the Player Grade may be considered the “heart” of the copyrighted work; Rang only took a small portion of those hearts (eighteen), the Player Grades have meaning only in the context of comparison to other Grades, and the Grades were not the focal point of Rang’s articles, but rather a small piece of a comprehensive and original analysis on each player.
The court characterized the fourth factor – effect on the market for the copyrighted work – as “undoubtedly the single most important element of fair use.” This favored Rang, with the court noting that the scouting reports and the articles compete in two distinct markets; the reports are sold to member NFL teams, while the articles are available to the public. Because the reports contain six pages of information for each draft prospect, the court downplayed the fact that some of National’s competitors could see the Player Grades. “Even if National attempted to sell its Scouting Reports to the public at large, Rang’s disclosure of eighteen player grades does not compete directly with the material in the Scouting Reports,” and therefore cannot in any way serve as a market substitute.
In balancing the four factors, the court determined that Rang’s use of the Player Grades as one component to an overall commentary on potential NFL draftees, even though commercial in nature, was sufficiently transformative and therefore would have no effect on the market for National’s reports, even if National decided to sell its unpublished reports to the public. Thus, the court deemed Rang’s use a fair use and granted defendants summary judgment on the copyright infringement claim.
But the game wasn’t over yet.
The teams returned to the field ready to battle over the plaintiff’s second claim – trade secret misappropriation under the Washington version of the Uniform Trade Secrets Act. On this claim, the court found factual issues that precluded the grant of summary judgment specifically, whether the Player Grades have economic value due to their private nature, and whether National reasonably attempted to preserve their secrecy.
We’ll be watching from the stands to see whether National can mount a comeback on the trade secret front.