RPK posted a query as to whether bloggers need "express written consent" before live-blogging. Short answer is, as with all things in the law, its not so clear. But it is a legal question and I am a lawyer, so I'll take a crack at it.
The question revolves around the nexus two areas of law, copyright law and First Amendment law. All professional sports leagues own the copyrights to the broadcast of their sporting event; be it radio, TV, Internet, or other medium not yet invented. This copyright includes, among other things the visual images and the sounds from the game. (This is why Sportscenter can't show highlights of a game until it is given clearance by the network that broadcast the game.) Leagues have the right to control the means and the method in which their games are rebroadcast.
However, the copyright does not include a recounting of the game. Unfortunately for the leagues, sporting events are considered news. I mean there is an entire section in the newspaper devoted to sports. And no one, not even the NFL can copyright the news. Well almost.
Where things get fuzzy for the live-blogger is the distinction between "hot-news" and "cold-news". Hot-news is news as it exists when it is first reported after it first occurs. Hot-News is protected under copyright law, as it is the way newspapers make their money. If a newspaper, or news organization couldn't protect their reporting when it was hot, no one would buy any one paper. The news would be the same all over the place. Everyone would be stealing stories, and no one would be doing reporting. There would be no incentive to cover the news when you could steal it from someone else.
Cold-news, is hot-news after some time has passed and it no longer has any economic value. Cold-news is not protected and is part of the public domain.
So how does all of this relate to the professional sports? Well live broadcasts are the leagues' hot-news. All the economic value of a game lies in that there is only one place to watch it, or a handful of places to hear it. So bloggers are screwed? No, not really. The line between hot-news and cold news is a fuzzy one at best. Live blogging isn't all that live when you consider all the delays and even the days that go by before someone reads it. Even so, the description of a single play loses almost all economic value soon after the play is over. (Or at least that's what i would tell the court)
Even outside the realm of copyright law, bloggers can find safe haven in the First Amendment. Copyright law always takes a back seat to the First Amendment. The only question that needs to be answered where copyright material meets the first amendment, is whether the blogger has contributed enough "transformative elements" to bring the work under the protection of the
First amendment.
Put in the context of this question, did Will Leitch (Deadspin editor and CBS glogger?) bring enough of himself to the live-blog to protect the material under the First Amendment. Sure he did. No one really reads a live blog to get a play by play recap, they read it for the commentary. Which isn't copyrighted by the league.
So there, take solace bloggers. You have at least a colorable claim that what you are going is protected under the law.
But beware courts are fickle, and I'm not a copyright attorney. So be careful.
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