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Who can watch fan-filmed videos of the Daytona Nationwide wreck?

Some fans filmed Kyle Larson's car as it sailed into the air and parts flew into the stands, but NASCAR tried to take the videos down.

Some fans filmed Kyle Larson's car as it sailed into the air and parts flew into the stands, but NASCAR tried to take the videos down.

Can NASCAR prevent the public from watching a fan video of yesterday's crash at Daytona International Speedway that injured at least 30 people and sent 14 to the hospital? The answer is unclear but has significant implications for the use of social media in spectator sports. 

Last night, high school sophomore Tyler Anderson tweeted a 1 minute, 16 second YouTube video of the final lap of the Nationwide Series race. The crash occurs about 13 seconds in and shows debris, including a tire and pieces of a car engine, flying through the catch fence designed to protect the crowd. Spectators shown in the video are understandably panicked and frightened. 

Minutes after Anderson posted his video, YouTube removed it at the request of NASCAR. The rationale for NASCAR's request was originally reported as a legal one -- namely, that the video infringed NASCAR's copyright in the race.  The Digital Millennium Copyright Act bars unauthorized videos from appearing online.  NASCAR, however, maintains that it placed the request not for copyright reasons, but out of respect to those injured.

A NASCAR executive tells, "We did not request the video be taken down for legal reasons. We only asked out of privacy concerns for the families of those injured and for persons shown on the video. We have not requested other videos of the race be taken down, only this one because it is graphic and because it shows spectators close-up."

After taking the video down, YouTube reversed course and restored it. In restoring Anderson's video, YouTube issued a statement citing legal reasons: "Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the videos."

As of this story's publication, the video is still up on YouTube.

So who decides who can watch Anderson's video?

Consider the law from NASCAR's perspective. For a person to attend a NASCAR race, he or she must buy a ticket. The ticket is a license to attend the race. Like any license, there are restrictions attached. At least two types of restrictions are relevant to yesterday's race. 

First is the restriction that by attending a race, the spectator assumes the risk of injury or death. The spectator, in fact, releases NASCAR, the speedway and related parties from any liability for personal injury. Should the spectators injured yesterday sue NASCAR, Daytona, the makers of the catch fence or other parties connected to the race, this restriction would be a key defense. A ticket-based assumption defense normally works for baseball teams sued by spectators injured by foul balls, but it is less effective for other spectator injuries, including those injured while attending hockey games. A court evaluating liability would consider, among other factors, whether Daytona's catch fence and other safety measures were on par with similar racetracks, whether NASCAR's safety requirements adequately protected spectators and whether the accident was so unusual that no one could have foreseen it.

More relevant to Anderson's video is a second ticket restriction. By attending a NASCAR race, the spectator consents that NASCAR owns the intellectual property of the race. This means that the spectator cannot record or broadcast his/her own video. If a spectator does so, the spectator has breached the ticket's limited license and can be sued for copyright infringement and breach of contract. Any video-sharing company, like YouTube, that transmits the video can also be sued for copyright infringement. Benefiting NASCAR, courts have held that broadcasts of sporting events, though not the events themselves, are protected by copyright law. NASCAR has a compelling incentive to protect the broadcasts of races, as it, along with NASCAR drivers and teams, derive considerable revenue from television and other broadcast contracts. If spectators could essentially broadcast games through their iPhones and YouTube, television companies would pay much less for the rights to broadcast NASCAR races.

But only about 12 seconds of Anderson's 1 minute, 16 video is actually of a NASCAR race; the rest centers on the crash and fans scrambling for cover from flying debris. NASCAR's ownership over this latter part of the video is questionable, since "facts" and "news" are not subject to copyright protection and the First Amendment safeguards public access to them. The NBA knows this quite well. Back in 1997, the U.S. Court of Appeals for the Second Circuit ruled that the NBA could not claim copyright in its stats and scores, which Motorola had broadcast through a wireless paging device known as SportsTrax. The reasoning? Facts and news are not copyright protected. 

It could be argued that at about 13 seconds into Anderson's video, the race transformed from a copyright-protected NASCAR event into a not-copyright-protected news event. Fans screaming and fleeing for cover is not part of any race, but is certainly newsworthy. On the other hand, NASCAR might contend that because crashes are (unfortunately) not uncommon in NASCAR races, a crash should be considered a continuation of a copyright-protected NASCAR event. This is a difficult area of law and highlights how legal protection for "sports events" and "news events" may not always be the same.

Even if Anderson's video is subject to copyright protection, it's not clear that NASCAR would own that copyright.  Anderson could assert that he has copyright in the video, as a copyright attaches upon the moment a work is created.  Presumably Anderson -- who tweeted this morning that he understands why NASCAR requested the video be pulled -- has not filed for copyright registration with the U.S. Copyright Office.  Registration, however, is only needed for certain copyright protections, such as the ability to bring a lawsuit for infringement (for this same reason, NASCAR probably can't sue Anderson or YouTube because it also hasn't registered Anderson's video).  But NASCAR could insist that the license to attend a NASCAR race relinquished Anderson's right to claim copyright in the race.

Even if NASCAR owns the copyright of Anderson's video, what kind of damages would it suffer by people watching it? Is NASCAR harmed because the public sees a video of a crash and people fleeing for cover? If so, is it the kind of harm the law should remedy? What kind of precedent would be set?  To be clear, NASCAR does not claim a legal interest in the Anderson video and thus these questions will not be answered for the time being. But at some point a video like this may raise these types of questions. Indeed, as spectators gain improving capability to record and distribute videos from live sporting events, and as leagues and athletes try to defend their games from unauthorized access, the potential legal issues presented by this 1 minute,16 second video are likely to become more common and contentious. Watch out.

Michael McCann is director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also directs the sports law program at Vermont Law School.