Balancing the Value of Copyright: How the NBA and MLB Need to Adjust to Evolving Platforms

Sean Cunningham is a J.D. candidate, 2021 at NYU School of Law.

COVID-19 has altered almost every facet of American society, with one of the major changes to day-to-day life being the lack of sports. Most Americans experience sports from the comfort of their own homes, but now that they are confined to their couches and in need of an escape more than ever, sports are no longer available. Still, despite the tragedy of current everyday life, sports will return at some point, and sports leagues will continue to deal with issues of intellectual property and how they distribute their product to a wide audience. This blog post seeks to address an ever-evolving area in sports and intellectual property that will continue to exist after the COVID-19 pandemic, acknowledging that in the scheme of things, this area of law and sports is insignificant in comparison.

Even when stadiums are full and ticket prices are high, the revenues from ticketing and sales are a drop in the bucket to the revenues sporting leagues receive through television contracts. Leagues like Major League Baseball and the NBA have massive deals worth multiple billions of dollars. However, despite how profitable leagues are through their television deals, they take much different approaches to protecting the rights to their on-screen product.

Major League Baseball is massively protective of its television product. If somebody tweets a highlight of a baseball game, Twitter will take that tweet down and lock the account for violating MLB’s copyright. By being so protective of the product, MLB is ensuring its television partners that their product is valuable to them. However, MLB may also be hindering the overall popularity of the game.

Looking at the other side of the coin, the NBA has taken the exact opposite approach. While MLB looks to preserve the value of its product to television networks, the NBA almost encourages the spreading of its highlights on social media platforms. As a result, during basketball season, when Russell Westbrook or Steph Curry does something crazy, millions of people see it instantly, while when Mike Trout makes a diving catch, only those watching the game can see it, or they can view it later on a highlight show or whenever Major League Baseball chooses to distribute it through one of its accounts.

On the surface, it seems like the NBA’s approach is obviously the correct one: the league has never been more popular. Its stars are among the most famous people in the country while the average American might not know who center fielder Mike Trout—arguably one of the best to ever play the game—is or what he looks like. However, MLB may contend that their approach is still the correct one, citing the NBA’s television ratings.

While it may seem like the NBA is as popular as ever, television ratings are down. This can be attributed to a number of factors, but undeniably one has to be the fact that a fan can see every exciting clip of an NBA game on Twitter without tuning into the game itself. There is definitely an advantage to making the game accessible and interesting so fans are talking about it, but in order to preserve the most important financial asset the sport has—its television product—it must consider making some changes.

It is clear both leagues have reasons for their loose or strict policies, and baseball has begun making some adjustments to its policies as well. The 2019 season saw some “notorious” and popular offenders of posting highlights such as @pitchingninja given some leeway. It is clear that there must be a balance between the two: baseball must make more of its content available to enhance the national popularity of the sport and its stars, and the NBA must find a way to make its regular season games worth watching live so fans can just tune out and enjoy the highlights in real time.

Regardless, both industries will continue to be massively profitable through television contracts since sports are the biggest thing keeping cable afloat. In a world full of streaming options at our fingertips, the live drama that comes with sports is one of the few aspects of television that cannot be completely replaced, so they will always be valuable. Still, as major sports leagues must understand that they are competing for both viewers on a nightly basis as well as popularity in mainstream society, and in order to succeed at both, they must balance the value of their copyright and the advantages of making it widely available for distribution on social media platforms.