## Facts

- New Boston Television (WSBK-TV) held the exclusive right to locally broadcast Boston Red Sox and Boston Bruins games.
- The Red Sox owned the copyright in the telecasts of its games, and WSBK owned a one-half royalty interest in those telecasts.
- The Bruins and WSBK jointly controlled the copyright in telecasts of Bruins games.
- Entertainment and Sports Programming Network (ESPN) operated a national cable sports service that aired sports news and highlights.
- ESPN took excerpts from WSBK’s game telecasts—highlights of the games—sometimes up to about two minutes, and rebroadcast them on ESPN.
- ESPN did not obtain consent from WSBK, the Red Sox, or the Bruins, and did not pay for the footage.
- WSBK sued ESPN for copyright infringement and sought an injunction; ESPN raised fair use as a defense.

## Issues

1. Whether ESPN’s unauthorized rebroadcast of short highlight excerpts from copyrighted Red Sox and Bruins telecasts qualified as fair use under 17 U.S.C. § 107.
2. Whether WSBK was entitled to injunctive relief to stop ESPN’s continued rebroadcast of those excerpts.

## Decision

- The court rejected ESPN’s fair use defense as applied to its routine rebroadcast of WSBK’s highlight excerpts.
- The court concluded that ESPN’s taking of game “highlights,” even if brief in running time, was substantial in context because it selected the most valuable segments of the telecasts.
- The court found ESPN’s use to be commercial and closely related in function to the original telecasts (delivering the televised game action to viewers).
- The court found that the unlicensed copying threatened the copyright owners’ ability to control and exploit the market for telecast excerpts and similar uses, including markets the owners had not yet entered.
- The court granted injunctive relief barring ESPN from continuing to rebroadcast the excerpts without permission.

## Legal Principles

- Fair use under 17 U.S.C. § 107 requires analysis of the statutory factors, including purpose and character of the use, the nature of the work, the amount and substantiality taken, and the effect on actual or potential markets.
- Audiovisual telecasts of live sports events are copyrightable to the extent of the original expressive choices in filming and production, even though the underlying events are real-world occurrences.
- Under the “amount and substantiality” factor, a court may treat a short excerpt as substantial when it captures the “highlights” or other qualitatively central portions of the work.
- Commercial reuse that serves as a substitute way for viewers to watch the most important game action weighs against fair use, particularly when done regularly and without authorization.
- Under the market-effect factor, a copyright owner’s failure to exploit a distribution channel does not give others a free right to occupy that channel with unlicensed copies; potential and reasonably foreseeable licensing markets count in the analysis.
- When infringement is shown (or likely shown at the injunction stage), courts may grant injunctive relief to prevent ongoing unauthorized copying that would interfere with the owner’s control of distribution and licensing.

## Conclusion

New Boston Television v. ESPN held that ESPN’s repeated, unlicensed rebroadcast of up to two-minute highlight excerpts from WSBK’s Red Sox and Bruins telecasts was not fair use, and the court issued an injunction to stop ESPN from continuing to air those excerpts without the consent of WSBK and the teams, emphasizing the qualitative value of highlights and the resulting harm to present and potential licensing markets.


New Boston Television v. Entertainment Sports Programming Network, 215 U.S.P.Q. (BNA) 755 (1981)