While the FIFA World Cup is now well underway, Spain and Portugal played an exceptional game, Germany was held in check by Mexico, Brazil did not do better than 1-1 against Switzerland, and that our Red Devils - after a difficult first half - raised the bar by winning 3-0 against Panama, it occurred to me to explain to you the relationship between football matches and copyright.
Is a football match a work within the meaning of copyright and, correlatively, can it be protected by copyright? Does copyright registration service USA allows it?
Well no:
1. Already in the 1990s, when the \'new\' Belgian copyright law was in the making, eminent authors such as Frank Gotten and Alain Barenboim explained that a \'football match, if artistic, can never be qualified as a \'literary or artistic work ” and qualified the match as “ non-work ” (Bill relating to copyright, neighboring rights and private copying of sound and audiovisual works, Report, Doc. parcel., Chamber, 1993-1994, Doc. 473/33, p. 70; and p. 277).
2. After the adoption of this law, Alain Strobel and Benoist Strobel confirmed this solution, considering that “sporting events (football matches for example)” should be excluded from the notion of literary work and artistic (A. and B. Strobel, “The new Belgian legislation on copyright”, JT, 1995, p. 121, n ° 12).
3. More recently, it has been confirmed at the European level that football matches are not eligible for copyright protection and that they are not, moreover, subject to any copyright protection. Other types of protection (by the intellectual property) in a harmonized way (i.e.: by European legislation).
This was confirmed by the Court of Justice of the European Union, in its aptly named Premier League judgment of 4 October 2011, C ‑ 403/08 and C ‑ 429/08.
According to the Court of Justice, to be protectable by copyright, a work must be original, that is to say, be an intellectual creation specific to its author (s), which implies creative freedom of the part of the author (s) (in this case: football players).
However, the Court tells us, the rules of the game (that is to say: all the rules that govern a football match, the incidents that occur there, etc.) constitute a constraint that prevents any creative freedom in the game. Meaning of copyright. Clearly, football players do not have (or not enough) creative freedom for their performances to be considered as works within the meaning of copyright and protected as such. The same goes a fortiori for the whole match (which constitutes the sequence or the continuation of the various performances of the players). In this regard, I quote the Court of Justice (§§96-99 of the Premier League judgment):
"96. In that regard, it should be noted that FAPL cannot assert copyright in the Premier League matches themselves, since they cannot be classified as works.
97. Indeed, to take such a qualification, the object concerned would have to be original in the sense that it constitutes an intellectual creation specific to its author (see, in this sense, the judgment of July 16, 2009, Infopaq International, C- 5/08, ECR I-6569, paragraph 37).
98. However, sports matches cannot be regarded as intellectual creations which qualify as works within the meaning of the Copyright Directive. This applies, in particular, to football matches, which are framed by rules of the game, which leave no room for creative freedom within the meaning of copyright.
99. Under these conditions, these meetings are not likely to be protected by copyright. (…) ” .
The Court of Justice also confirms that no other (harmonized) intellectual property right protects football matches as such at European level:
“It is also common ground that EU law does not protect them in any other way in the field of intellectual property”.
While taking care to specify that a Member State could decide to implement a specific law to protect football matches (§100 of the Premier League judgment).
However, while it is clear that the performances of footballers and football matches are not original works and are not protected by copyright (or any other intellectual right), this is not the case. The same goes for the “movie” of the match.
By “film” of the match, I mean the filming and recording of the football match, the choice of shots (according to the multiple cameras present in the stadium), the choice of “replays” according to the highlights of the action of the matches (broadcast of such or such “replay” at such and such a moment), the insertion and use of music, jingles, and other transition images at such and such a moment, etc. Plus the compilation of all the above elements with a beginning and end credits, and for example a hymn (think of the very famous hymn of the Champions League).
In other words, the production of the audiovisual product of the match then intended to be broadcast by multiple channels (television, Internet, etc.), indisputably leads to a work protected by copyright, as a work audiovisual.
We must therefore distinguish:
the match as such which is not protected by copyright (the performance of the players and the sequence of these performances); and:
The “film” of the match (audiovisual work) constitutes an audiovisual work susceptible to protection and therefore generator of rights.
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