Mixed Martial Arts Law Blog : Mixed Martial Arts Lawyer & Attorney : David Nelmark : Belin Lamson McCormick Zumbach Flynn Law Firm : Intellectual Property, Media Law : Des Moines, Iowa

Tuff-N-Uff Productions Inc. and its President have been sued for copyright infringement.   According to the Las Vegas Sun, its rival newspaper Las Vegas Review-Journal has sued multiple parties for using the Review Journal's copyrighted content without permission.  In Tuff-N-Uff's case, the promotion allegedly posted a Review-Journal article about a Tuff-N-Uff fight on the Tuff-N-Uff website. I don't know the exact article at issue, but I was able to find at least one such article on the Tuff-N-Uff website. It appears to be an exact cut and paste of an article that appeared on the Review Journal's website.

The Sun quotes Tuff-N-Uff's vice president as saying "Tuff-N-Uff didn't intend to infringe on copyrights and had taken steps to ensure stories posted on its website properly credited the source."  Therein lies the problem.

Many people believe that reproducing someone else's article or other content is okay as long as you note the source.  That is simply not true. 

Giving credit to the original author just means you are not guilty of plagiarism.  It does not mean you have not committed copyright infringement. In fact, it might just make it easier to get caught.  

In the case of the Review Journal, the newspaper assigned its copyright in the article to a company called Righthaven, LLC.  That entity uses software to find people infringing a copyright and then sues.  So, citing the Review-Journal as a source just makes it easier for Righthaven to find you.  I have no knowledge of the contract between the Review-Journal and Righthaven, but I would not be surprised if the Review-Journal gets a cut of any damages award or settlement that Righthaven gets from the infringers.

The moral of the story is that if you don't have permission (and you're not engaging in "fair use" by, for example, quoting a bit of an article to offer critique on the article) then you can't just reproduce someone else's article, photograph, song, etc.  That's why you see MixedMartialArtsLawBlog posts linking to other articles, rather than just cutting and pasting them onto this site.

So, I've explained why a newspaper, can sue someone for reproducing an article and giving due credit--and thus publicity-- to the paper, but I can't explain why it would want to in this instance.  Perhaps if it was the Review-Journal directly making the decisions on who to sue (rather than Righthaven) this would have been taken care of with a polite phone call and a license to re-post the article in exchange for a promise by Tuff-N-Uff to place an ad for its next fight in the paper.

As far as this blog goes, as long as you give me credit as the original author of an article, re-post to your heart's content.  I just want people to hear what I have to say, whether on this site or somewhere else where a reader chooses to re-post my content.  So, Underground, you're safe.  I have plenty of people to sue in my day job.

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Although I've not yet commented on the case, most MMALB readers are probably aware that M-1 and Fedor Emelianenko sued Affliction for its cancelation of the Affliction: Trilogy event that had been scheduled for August 1, 2009.  (For a good discussion of the case visit MMAPayout.com.)

What most of you don't know, however, is that M-1 and Affliction are on the same side of another pending federal case.  A company called Freeplay Music LLC has sued both companies in the United States District Court for the Southern District of New York for alleged misuse of a song called Legion (which can be heard by doing a keyword search for "Legion" on Freeplay's website).  The copyrighted song was allegedly used in at least 412 television commercials for the event. 

MMA promotional companies frequently face a serious issue of  others' infringing on their intellectual property. (See Square Ring v. UStream or, generally, Joe Hand Promotions.)    It is interesting to see the shoe on the other foot.   

As always, the filing of a complaint doesn't necessarily mean anyone has done anything wrong.  Neither M-1 nor Affliction has yet filed their answer to the complaint so we have not yet heard their side of the story. 

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In July, I blogged about the Ultimate Cage Fighting Challenge's possible infringement of the UFC's trademark and predicted that when the UCFC's website resurfaced it would be under a new name.  From the new version of the website it appears that the UCFC is now the XCFC (Xtreme Cage Fighting Challenge).

The XCFC homepage discusses a September 19 event, but the XCFC Facebook event page indicates that the event was moved to November 13, 2009.  The name of the organization and the event name (The Backyard Battle) remained the same, so intellectual property issues do not appear to have played any role in the postponement. 

There is already an XCC (Xtreme Cagefighting Championship) based in Michigan, but they are less likely to make a trademark claim than the UFC.   Trademark laws are governed by both federal and state law.  (State trademarks can usually be obtained quickly and easily, but provide less protection than federal marks.)  Since the UFC has a federal trademark, it can prevent any confusingly similar uses anywhere in the country.  In the absence of a federal trademark, a promotion can typically only go after competitors in its own state (absent certain circumstances that would still provide for cross-border confusion.) 

It remains to be seen whether the XCF (based in Missouri) which does have a federal trademark for "XCF Xtreme Cagefighting Federation") will make a claim against the XCFC or XCC. 

The bottom line here is that trademark law is murky and any promotion looking to protect its brand (or avoid stepping on the toes of someone else) should seek professional guidance.

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As part of its normal business operations, [Joe Hand] engages in anti-piracy activities designed at protecting the legitimate purchasers of the event. [Joe Hand] utilizes Agencies which hire auditors to visit non-subscribing establishments during the broadcast of the entire bout to determine whether any such establishments are illegally exhibiting the broadcast.

As Joe Hand himself noted in an interview with Bernard Fernandez of the Philadelphia Daily News (and yes, Joe Hand is a real guy... there is even  a Joe Hand, Junior) the UFC broadcasts are big business, bigger than boxing:

People ask, 'Do you think UFC will kill boxing? It already has. Boxing's dead.

Look, the next [Floyd] Mayweather fight [Sept. 19, against Juan Manuel Marquez] is the same night as UFC 103. Does that make any sense?

If you own a sports bar and you can buy a UFC event for $1,000, and you know you're going to pack the place, why would you buy the Mayweather fight for $2,200 and not do as well? 

My guess is that Joe Hand isn't having lunch with Bob Arum anytime soon. 

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Square Ring, Inc., the promotional company owned by Roy Jones, Jr., was the entity behind "March Badness" a hybrid boxing/MMA card March 22, 2009, that featured Bobby Lashley in the main event.    Square Ring has now sued UStream for copyright infringement, alleging that the company knowingly allowed users to upload and illegally watch streaming footage of the pay-per-view event.

Copyright laws prohibit copying or re-broadcasting someone else's program.  Thus, if UStream was directly putting copyrighted MMA events online, it would certainly be liable.  The grey area here is that UStream isn't posting any content directly.  Like YouTube or a typical internet bulletin board, users post the content that appears on UStream.  Typically, when a company just provides the space for others to speak, it is protected by "safe harbor" provisions in the Digital Millennium Copyright Act.  The protection is not absolute, however, as companies like Napster found out.

Square Ring's legal theory is, in a nutshell, that UStream knew copyright infringement was taking place and allowed it to happen.  In fact, before March Badness, Square Ring warned companies like UStream that it would crack down on internet piracy. 

Pirating pay-view events is as old as the events themselves, but the internet presents a whole new set of challenges. It's especially difficult for MMA promoters who serve a young, tech-savvy fan base.  Dana White has acknowledged that the UFC had an "incredible underground internet fan base," reported to have kept the sport of MMA alive in the lean years when its pay-per-view events were banned by cable distributors. 

The UFC has attemped to capitalize on the marketplace of the internet, offering live broadcasts of UFC events on Yahoo! for $44.95.  The flipside is that it also has to deal with mirror sites, like this one registered to a user in Istanbul, which offer the same broadcasts for substantially lower fees.

Like Viacom's ongoing lawsuit against YouTube, this case could have a dramatic impact not only on how MMA fans watch future broadcasts, but how user-generated content is distributed on the web in general. 

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I guest authored a piece about the Intellectual Propery provisions in the standard UFC agreement that is currently the lead article on MMAPayout.com.  A direct link is available here.

MMAJunkie.com has also picked up my post on Josh Neer.  They have added some details (including a quote from Neer's manager) in this article.

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The recent "Ultimate Cage Fighting Challenge" event in Pittsburgh has drawn the ire of the UFC.  As UFC Vice President of Regulatory Affairs Marc Ratner told MMAJunkie.com, "There's nothing wrong with [competition]. But there's some copyright infringement problems when they call themselves the UCFC."

I'm a long-time fan of Ratner, but he makes a common mistake in his statement.  What the UFC is really concerned about here is trademark infringement not copyright infringement.   Trademarks cover things that identify the source of goods and services. Examples include the UFC name and logo, and its slogans like "As Real As it Gets."  Copyrights protect works of art such as posters or DVDs.  (Patents--the third major arm of Intellectual Property--protect things like inventions, chemical compounds, and processes.)

In any event, the UCFC guys are in hot water.   While their official name includes "Challenge," other websites referred to their event as the "Ultimate Cage Fighting Championship."  Whether this resulted from internal references using the term "Championship" (such uses were reported by MMAJunkie.com) or was just a mistake on the part of third parties, it will help the UFC demonstrate the "likelihood of confusion" needed to prove trademark infringement.  And, even if the term Challenge had consistently been used, "UCFC" cuts a little too close to "UFC," especially when your event features an appearance by Tito Ortiz.

The UCFC website is currently down, bearing the message "Our site is currently being upgraded. Sorry for the inconvenience."   I suspect the "upgrade" will involve a pretty significant name change. 

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