Who Has Rights To Fan-Generated Video?

The broadcast of eyewitness video of the pre-Daytona 500 crash last month — and NASCAR’s attempt to block it online — raises concerns about who owns the rights to fan-generated content.

Within a couple of hours of the Feb. 23 crash — which sent debris into the stands, and fans to the hospital — TV stations in Orlando-Daytona Beach-Melbourne (DMA 19) broadcast footage of the collision captured by people at the Daytona International Speedway.

It took little time or effort to obtain it, news directors say. Spectators offered their footage to WFTV, Cox’s ABC affiliate, unsolicited. All the crew from WKMG, Post-Newsweek’s CBS affiliate, had to do was ask.

Around the same time, NASCAR blocked similar fan video from YouTube based on copyright issues. Like most major sports leagues, NASCAR owns all the rights to film and broadcast anything that happens at its events.

YouTube eventually restored the video — and NASCAR later issued a statement saying it blocked it “out of respect” for injured fans. Neither WFTV nor WKMG heard from the racing organization.

But the initial video blocking by NASCAR — an organization well known for being particularly aggressively protecting its copyrights, right up there with the NFL — has raised the issue of whether news organizations risk legal problems when airing user-generated video that blurs the line between what is and isn’t copyright-protected.

“You have to be very careful with this stuff,” says Sue Progoff, a New York attorney who specializes in copyright-related issues. Progoff recommends that news organizations ask individuals who provide video a few basic questions — like whether the footage is original and if it belongs to them — before broadcasting it. She also recommends getting a legal opinion just to be sure before putting user-generated content on-air.

In most cases, the copyright on video belongs to whoever created it, meaning a viewer who captures, say, a fire or crime scene on a cellphone has the authority to give it to a TV station to air or post online, Progoff says.

But the situation is different when it comes to the crash video because NASCAR owns the rights to all images from its events — and says so in the fine print on the back of each ticket. That copyright disclaimer basically serves as a contract under which attendees technically give up ownership of photos or video they take at a NASCAR event.

But does that disclaimer apply in the case of an unexpected, newsworthy event like the collision?

Observers say NASCAR — or any other sports league, for that matter — would less likely cry foul if a fan posted a video that showed a sporting event in a more positive light.

Or if things like money, and issues of liability, were not at stake.

“If the Chicago Bears aren’t going to make money on that fan video, they don’t worry about it,” says Jaime Spencer, a Magid VP who specializes in new media.

And then there is the question of whether an organization really has the ability to stop the public from seeing images of a huge national event.

“There is a reality here,” says WFTV News Director Matt Parcell. “Organizations can try to control it all they want, but when you have 100,000 people watching something, something is  getting out.”

As RTDNA Executive Director Mike Cavender says: “It’s certainly not as simple as whoever takes the video owns the video. The broader issue is about what is distributable and what is newsworthy and what isn’t. It continues to be convoluted for many — not only broadcast outlets, but websites and others who disseminate content.”

Parcell says fan-generated video played a particularly important role in covering crash, which injured at least 30 people, primarily because it affected people in the stands, where media aren’t stationed.  The station aired video provided by viewers the evening of the crash.

WFTV regularly plays by the NASCAR rules. Daytona is a big deal here, so we have plenty of crews there, covering the fans … and the post race,” Parcell says. “But in terms of showing the race, that’s an ESPN thing.”

But Parcell says those rules didn’t apply to video fans captured of the collision inside the Speedway.  Not only was his crew not able to get it themselves, but also the nature and magnitude of the event made fans’ coverage even more crucial.

“I think it was fair game,” he says. “This was a bona fide news event happening at a bona fide news event. So at some point the gloves kind of come off and this stuff is there to use. It’s part of the newsgathering process,” Parcell adds.

And Magid’s Spencer agrees that user-generated content is an important contributor to TV news, but urges broadcast journalists to exercise caution before using it. Spencer says all user-generated video should be run past legal before it’s air, even if it seems innocuous enough.

“You want to make sure that you’re safe,” he says.  That is especially important for TV news departments to remember considering the speed at which news is expected to be generated makes the industry ripe for mistakes.

“Sometimes you can either forget about or ignore things, or cut corners, and those are the times you can get burned.”

Read other Air Check columns here. You can send suggestions for future Air Checks to Diana Marszalek at [email protected].