Archive for the ‘NFL Football’ Category

In case you haven’t noticed (and given the fact most of my readers live in the south, and the fact that the Cincinnati Bengals … well … suck hard, you probably haven’t), there is a major showdown between blogosphere and the NFL brewing. This battle pits the Cincinnati Bengals against the Fan-Sided Blog Network and its StripeHype blog covering the Cincinnati Stripes.

Apparently, the Cincinnati “Football” Bengals — without warning — sent StripeHype (via its network parent Fan-Sided Blog Network) the proverbial lawyerly “nastygram” informing StripeHype and Fan-Sided that if they didn’t cease and desist use of the Bengals identity a lawsuit would be filed. This led to a blow-out between the powers that be at the Fan-Sided Network and the lead writer at StripeHype.

In the end, Fan-Sided backed down at the threat from the Bengals, and the lead writer at StripeHype, quit the blog and has decided to start pulling for the Cleveland Browns (“Hold on, wait a minute, put a little Dog in it! Woof, Woof Woof, Woof Woof…”).

The Bengals — apparently in partnership with the NFL — decided that StripeHype was appropriating the identity of the Bengals and were causing the Bengals and the NFL “serious and irreparable harm.” Ultimately, lawyers for the Bengals and the NFL demanded that StripeHype and Fan-Sided:

See Nastygram, p. 2. <Click to download in PDF Format>

I still just don’t get the position that some institutions take with regard to blogs…

On the first point, I’ll give the Bengals their due, if it’s their trademarked logo, then they have the right to control it. Be that as it may, under the Fair Use Doctrine (See below), I’m not sure that the use of the logo is an infringement in the context it was used (reporting on the Bengals). Newspapers often print team logos next to stories about that team — simply to hel identify the subject matter.

On the third point … well … I understand what they are saying, but wouldn’t Axl Rose and the other members of Guns & Roses also have a claim here as well? While I appreciate they may have trademarked the phrase, the fact remains that the English language is not subject to being trademarked. All that said, I do understand what the Bengals are saying with respect to the use of the phrase within the context of a blog about football, the Cincinnati Bengals, etc.

The second point — at least in part — however, is pretty laughable. Ignoring the issues of helmet designs and uniform designs, telling someone they cannot use a certain color scheme — whether the team uses it or not — is about as absurd a notion as I have ever heard.

Bearing all of this in mind, the larger issue is one going to the heart of the blogosphere — where is the line between “promoting” a team as opposed to “appropriating the likeness” of a team? On one level, this is a question of law and fact, and one which is not always that clear — that’s the stuff that lawyers argue about till they are blue in the face.

On a more practical level – removed from the absurdity of legal arguments made by shysters, degenerates, and lawyers (I can say that, I am one) — is reality. In day-to-day life, what is okay and what is not?

As a general rule, the Fair Use Doctrine is embodied by a series of of defenses laid out at 17 U.S.C.A. 107-118. The most important being the ones found in section 107 which reads:

17 U.S.C.A. 107 (2008) (emphasis added). Also see e.g. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218 85 L. Ed.2d 588 (1985).

This, along with the caselaw construing it, is what protects writers, reporters, teachers, editors and — yes — even bloggers in their reports, analysis, commentary, and other “publications” about whatever subject they choose. While the concepts and court opinions emanating from this doctrine are extremely powerful in terms of the protections they grant, they are defenses (i.e. they are only useful after you are already in court). Thus, they are more academic concepts for most folks, than they are guiding principles.

First of all, I am not going to say that the folks at StripeHype did not cross the line of Fair Use and infringe on the likenesses (copyrighted or otherwise) of the Bengals and the NFL. The reason for this is that — until this story started developing — I had never read StripeHype, and all of the “offending” content has been taken down.

What I will say is this, I think that the powers that be with various teams, schools, institutions, and so forth misunderstand the goal and purpose of the blogger. Today’s blogger was the penny-press writer, pamphleteer, or street corner barker of the late 19th Century. True, the medium and potential reach of the blogger is quite different from those early raiders of the Fourth Estate, but the concept remains the same:

“I have something I want to say publicly, and I’m going to say it…”

Now it does not follow that anyone will actually want to hear what is said (especially in the case of Gate 21) but that is the driving force for most bloggers. Some have an axe to grind, some have a “cause” they seek to promote, some simply want the satisfaction of seeing their thoughts on public display, there are numerous motivations. In the case of sports-related blogs, however, the typical motivation arises from a fan’s dedication to “their team” and their desire to support it more publicly.

In other words, most sports-bloggers — at their basic level — are fans first and writers second.

Thus the question of why a team, league, or player would go after a blog seeking to promote them arises. Now, make no mistake, part of supporting your team often includes bashing your rival — I’m as guilty of that as anyone. There is also a fair amount of satire involved with sports-blogging, which — I suppose — could be taken the wrong way. As best I can tell, none of this was at play in the case of StripeHype — the writers there were fans (stress “were”) of the Bengals. So why go after them?

Well, first of all, the Bengals are hardly new to this. In 2000, they sent a similar cease and desist letter to the anti-Mike Brown site: MikeBrownSucks.com — apparently to no avail since the site is still up and running, and has publicly posted their “Legal Documents Library” which includes their absolutely priceless response to the demand.

Even though I am a lawyer, it seems to me that a quick email asking nicely if StripeHype would remove the logos that the Bengals felt were being infringed upon might have been sufficient. I got such an email from a really nice guy at the Knoxville News-Sentinel asking me to attribute or remove a photograph that I posted which I never realized they owned. I called him, we had a very friendly conversation, I apologized, and I took it down. No harm, no fight, no conflict. He won, I won — and I still read the paper. That, however, just isn’t the way some folks think.

Ignoring what the Bengals “could have done,” however, the only thing that ever really matters when it comes to big-time sports any more is, of course, money. This once again seems to be an issue in the case of StripeHype. The above-referenced nastygram unabashedly keys the fact that they felt StripeHype used these images to make money stating:

See Nastygram, p. 1.

It is true that some bloggers do little more than try and use their “platform” for making money on ads, click-thrus, etc. I have ads here on Gate 21, but — to date — I believe that I have made a total of, maybe, $30.00 — and due to minimum payments on revenues, I have yet to get a single check. The ads are there to try and defray some of the costs associated with the operation of this site, not to line my pockets. This is the case for most bloggers.

Ignoring all of this, at the end of the day, the question remains do teams really want to go after fans who are — at least by most standards — promoting them?

Of course, this question is completely rhetorical — there is no answer. Fortunately for me, Mike Hamilton, the Tennessee Volunteers, and the University of Tennessee have — essentially — adopted the “just ignore them” mentality. Thus, I haven’t gotten any nastygrams (Although, in the interest of disclosure, I have sent quite a few in my day, but never as a result of a copyright issue. Damn lawyers!) and Gate 21, my temple of wasted time, continues on.

In the end, I have a feeling that teams and franchises will eventually have to face the issue of bloggers directly. Purely speculating, I would imagine that collegiate athletic programs will — in the end — be far more willing to embrace bloggers than professional sports teams. Bloggers, however, cannot be ignored indefinitely, simply due to their growing popularity. Whether that face-to-face takes the form of cooperation or legal attacks is yet to be determined.

In the meantime, the Bengals appear to have won this battle — on little more than a threat from a young associate at a big law firm in New York. It is a shame that a team feels the need to attack fans like that, but I suppose they felt it was what they had to do.

In completely turning his back on the Bengals as a result, I’m sure the lead writer at StripeHype felt exactly the same way…

– Go Figure …

For More Information on Copyright and Blogging, Check out the Following:

• Copyright Law for Bloggers – MoonDog
• Citizen Media Law Project
• Legal Guide for Bloggers – Electronic Frontier Foundation
• Chilling Effects Clearinghouse

*Disclaimer: While the writer of this post is an attorney licensed to practice law in the state in which he resides, this post is not intended to give or offer legal advice, or otherwise render a legal opinion on the matters discussed herein. Furthermore, the author does not actively practice in matters pertaining to media law, copyright, trademarking, or intellectual property, and makes no claims as to the accuracy or correctness of any statements regarding the law(s) herein. Should you have questions regarding such legal matters you should consult an attorney licensed in your jurisdicition.

Now that the NFL Draft has come and gone, we have truly enter the deepest, darkest, dankest, despicable, and moany other words starting with “d” time of the year. This is the lowest point of the off-season, and the point which pains my heart so.

More importantly, it is the time of the year during which I have a particularly difficult time coming up with things to say here on Gate 21 for all of you to ignore.

Thus, I plan on rolling out a little something new here in the next few days, and doing a few “retrospectives” until something of interest begins to come along.

Oh, the angst of not having anything to write about, it’s enough to make you … edgy

In the meantime, however, I am pleased to say that the Wise and All-knowing MoonDog and I have been working on a little something over at his joint, which will hopefully come screaming into existence shortly. In the meantime, feel free to slid on over to his world and sample the wares, if for no other reason than to say “Ahh, I remember back when…” like my parents, grandparents, and pretty much anyone more than two years older than me always did.

Uh, oh yeah, and congratulations to govolsxtra.com/news/2008/apr/26/patriots-go-mayo-no-10/” target=”_blank”>Jerrod Mayo, Brad Cottam, and Erik Ainge on being drafted by the New England Patriots, Kansas City Chiefs, and the New York Jets respectively. Godspeed gentlemen. As for the rest of the 2007-08 Tennessee Vols, thank you for all that you gave to Orange Nation during your time around the Hill, and best wishes for the future.

Hopefully, something substantive in the near future…

– Go Figure …

Image Courtesy of: LOL Jocks

It was just announced that Green Bay Packers’ Quarterback Brett Favre is retiring, and will not return for another season.

This comes only hours after Randy Moss re-signed with the New England Patriots. It was well documented that Favre had asked the Packers’ front-office for more receivers and playmakers, and had specifically asked that Moss be brought to Green Bay.

Thus, I guess Brett will simply go back to wearing his Wranglers, and rolling around in the dirt…

– Go Figure …

Image Courtesy of: FanNation

I’m not much of a pro football fan. I have my favorite teams and all, but usually I don’t really watch the games until the playoffs, mainly because there isn’t any college football.

Anyway, much to the surprise of all the talking heads, the Giants managed to defeat what had been touted as the “greatest team ever” in the New England Patriots. My hats off to the Giants for doing what everyone said was impossible.

Thus, for the second year in a row, the Super Bowl MVP is one of the Mannings.

I guess next year Olivia Manning will start for the Dolphins, leading them to reclaim their title to the the only truly perfect season.

Sure will suck to be Archie…

- Go Figure …

I always thought that I had to pay a lot to the VASF for my season tickets in Knoxville, but I’ve decided that I may be getting a bargain.

As you may have heard, Jerry Jones the oh-so-cute-and-cuddly owner of the Dallas Cowboys is now building a new stadium for the Cowboys. This is not going to be your typical stadium, mind you, but rather a giant orgy of stadium construction — Texas style. With a price tag of 1 billion dollars, Jerry World is destined to be a virtual palace which will thrill the senses and boggle the mind. Given the scope of the amenities which will be included in the 80,000 seat structure, fans will be able to enjoy countless food offerings and numerous entertainment choices — including 3 suspended JumboTrons and a huge JumboTron facing out into the freakin’ parking lot. In fact, the current plan is to no longer even have the Cowboys play games, but rather simply allow fans to come to the stadium and bask in Jerry Jones’ magnificent greatness. That’s fine by me … I hate the Cowboys (with apologies to Jason Witten)
Read the rest of this entry »

A few links worth looking at:

• Tennessee’s freshman placekicker, Daniel Lincoln, has gotten himself named to the Football Writers All-American Team. Not surprising considering that, without him, the Vols would have lost pretty much every game this season. So why didn’t he win the Heisman?: UT Sports.com: “Lincoln Named to FB Writers All-America”

• Michael Vick’s First Letter from Prison — Freakin’ Hilarious, a must read!: YMSWWC: “Vick’s First Letter from Prison”

• Sports writing excellence from “The Ghost of Neyland” on why Tim Tebow actually deserved the Heisman.: Third Saturday in Blogtober: “Tebow Deserved it, But…”

• Over on UT Vols Football Blog, there is a breakdown on the Mississippi State vs. UCF game in the Liberty Bowl.: UT Vols Football: “SEC Bowl Breakdown”

— Go Figure … lawvol

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