Responding to yesterday's post about WiFi coming to the SF Giants' home ballpark, a BoingBoing reader who may or may not want to be anonymous writes: "If I take my Powerbook to the ballpark and plug in my iSight Camera with it pointed towards the game, then isn't that an illegal broadcast of Major League Baseball? I'm a Giants season ticketholder, I'm going to try this."
IANAL, but I'm thinking the fresh part of this question is not so much whether or not our reader points his connected camera at the game, but what happens with the footage once it's captured. To whom it's made available and how. What's the existing policy re: photography in general?
UPDATE: Jason Schultz, Staff Attorney at the Electronic Frontier Foundation, responds:
There's not really a copyright problem, since its not a scripted performance, but there might be two legal problems: (1) trademark and (2) breach of contract. Trademark might be an issue because most people currently expect most broadcasts of baseball games to be sanctioned by MLB. However, if you made enough of a disclaimer to the people watching your broadcast that you are in no way affiliated with MLB and that you are a season ticket holder and this is your show and no one else's (including the Giants'), then I think you may safely avoid that problem.
The bigger problem, however, is contract. I haven't checked my Giants tickets lately, but I assume on the back of them is some kind of contractual prohibition on rebroadcasting the games in any form. If there is such a restriction, then MLB/Giants could assert that by purchasing the tickets, you agreed to be bound by the restrictions listed on the back. This may or may not hold up in Court, though, because just like click-wrap "I Agree" buttons, no one really reads those terms or assumes that they are bound by them. This doesn't make the restrictions void per se, but it does call them into question legally.
Update 2: BoingBoing reader David Newcum says, "Here's a very good summary of where photographs are allowed, by Bert P Krages II, Attorney at law. Snip:
"… The general rule in the United States is that anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs. … Property owners may legally prohibit photography on their premises but have no right to prohibit others from photographing their property from other locations. …"
Update 3: ernietheattorney says, "You might want to add a link to Eugene Volokh (UCLA law prof and copyright expert)'s post about a related issue involving the Cubs effort to stop people from charging to watch the games from the rooftop behind Wrigley Field." link.
Oren says, "The link you posted to the policy on the Giants website only prohibits rebroadcast of Giants games for commercial purposes without the written permission… So I'd guess non-commercial rebroadcast would be fine. Until they find it happening…"
And Dan at Lawgorithm says, "I just read the last post you had about photography of a game at Pac Bell, now that they're offering WiFi, and I've posted some more on the legal issue here."Link
Update 4: BoingBoing reader David says, "I just happened to go to a game the other night and have the ticket. The print is too small to scan, but here's a transcript of the important bit: 'Holder also agrees that he or she will not transmit or aid in transmitting any description, account, picture, or reproduction of the Event (including the baseball game and all pre- and postgame activities).' So it looks like you aren't even allowed to call someone and describe the game."