So here I am sitting in my office, having just finished writing a draft of a short article on the Second Amendment, and looking to goof off for a few minutes by surfing the web. I go to ESPN.com and see that Usain Bolt has won the gold and set a new world record in the 200. Cool, I think, I'll watch that. ESPN doesn't have the video, however. Okay, I get it. NBC paid gazillions for the rights to cover the Olympics, so I'll go to their Olympics website. No luck there either. There's a story about the 200, and some still photos, but not the race itself. So I try the BBC website. It has video but the video won't play in my "region." There's probably some way to disguise my location and get the feed, but that's beyond my technical capacity and/or need to see this race right now. Indeed, the only place I can find Bolt's race is on Youtube, where someone has used a handheld camera to videorecord a French broadcast of the race, and then uploaded the wobbly, grainy feed.
Is the frustration of my ability to see Bolt (in decent resolution) now a First Amendment violation? Well, not quite. In the great "Human Cannonball Case," the Supreme Court held that a performer, and by extension, someone to whom the performer has assigned his rights, can embargo reproductions of his performances except on his terms. Or in lawyerspeak, a state common law "right of publicity" of performers, athletes, celebrities, etc., is consistent with the First Amendment rights of the press and the public. All sports fans know this in their bones from years of hearing how Major League Baseball or the NFL or whatever forbids rebroadcast, retransmission etc. of the depictions, descriptions and accounts of their respective telecasts without express written consent.
And yet, we take this notion so for granted that perhaps we overlook the obvious. Suppose that instead of setting the world record in the 200 meters, or better yet, in addition to doing so, Usain Bolt had, while on the medal stand, made a political gesture, as per Mexico City in 1968. That would be news, right? And NBC surely couldn't maintain a monopoly on the video reproduction of that gesture. So why isn't Bolt's great race in the 200 also news?
The Human Cannonball case tells us that the right of publicity protects interests similar to those protected by patent and copyright law. And likewise here. By investing NBC with the exclusive rights to show the Olympics in the U.S. (at least initially), the law permits NBC to reap the rewards of its investment in coverage. And we can say that NBC did invest in the technology to cover the race, for which it should reap the benefits, but that coverage of the hypothetical political protest would be a windfall. But note that we would (or at least I hope we would) draw this same line---okay to monopolize sports coverage; not okay to monopolize political coverage---even if somehow NBC had gotten a contract to be the exclusive purveyor in the US of "all Olympics and Olympics-related events, including political gestures" for an initial 24-hour period, or some such. In other words, it really is something like copyright or patent, i.e., public law, that's doing the work here, not the private law of contract.
I'll also note an irony. The websites have gotten very good at making us watch short but annoying ads before starting videos on demand. If NBC had included video of Bolt winning the 200 on its website, I'd have likely been forced to sit through the ad before seeing the race. As it is, I'll watch it tonight on my DVR and fast-forward through the ads.
Posted by Mike Dorf