Streaming services like Netflix are expanding their offerings, including live sporting events. A question I've been asked multiple times (surprisingly more than expected) is how these services are able to broadcast such games. A common misconception is that the individual teams license their games. However, that is not the case. To fully understand this, what intellectual property is and how it is relevant to sports must be discussed.
Intellectual property includes trademarks, patents, and copyrights. For this discussion, we'll focus on copyrights.
To summarily define the term, a copyright is a form of protection created by law that protects original works of authorship that are fixed in tangible form from being used without permission/authorization by individuals or entitles besides the original author(s). Worth noting, a work is considered fixed in tangible form when it is captured in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for a short time. Copyrights protect things such as books, songs, movies, photographs, and yes, even sports broadcasts. Typically, a broadcast is copyrighted after it airs, as live events don't exist in a tangible form beforehand without something like a script (a whole different conversation).
However, an interesting scenario arises in cases such as broadcasts, as in some cases, the companies that film and distribute the media don’t ultimately own the rights.
There are three potential explanations for this. One possibility is that teams assign all broadcast rights to their respective leagues. Assignment means granting another entity permanent control over intellectual property, allowing them to use and distribute it as they see fit. This is permissible as these rights can be assigned. Assignment transfers permanent ownership, whereas a license grants temporary usage rights. In this scenario, the League would be the outright owner of the rights and free to license, distribute, or do what they please with the media. This seems to be the case in the NFL and NBA.
An assignment is different from a license, which is a temporary right to use, manipulate, and distribute the media within reason/as the licensor sees fit. In the case of a license, technically, the leagues and broadcast networks are not the owners of the rights but instead have the right to use it and distribute it. This seems to be the case in the MLB.
Another perspective/scenario of this, however, could be that the broadcasts are “work-for-hire.” A work-for-hire is produced when the artistic product was made by an individual, however, the product was specifically commissioned or was otherwise created in the scope of an employee’s duties. In such cases, the commissioner of the work would be the owner of the rights to the product. (In these cases, the commissioners would be the leagues, not Adam Silver (NBA), Roger Goodell (NFL), or Rob Manfred (MLB) in their individual capacities. In this alternative scenario, the league then licenses the rights to the teams to use for highlights and other content associated with the team’s own pre- and post-game coverage. Now, whether this is the case would ultimately depend on an in-depth review of the agreements between the teams and leagues.
Turning now to examples in professional sports, the MLB seems to be a league that does not already have the license to broadcast every team’s games and is pushing to get those rights. The MLB’s broadcast structure is different than that of the NBA and MLB in that the MLB is an expansive network of regional broadcast networks.
For example, the Mid-Atlantic Sports Network (MASN) is the broadcast network carrying Washington Nationals and Baltimore Orioles games. This network is team owned, being owned 77% by the Orioles, and 23% by the Nationals. MASN is a network that then distributes the games to various cable and network providers that carry the channel (and therefor the games). In some cases, these regional networks can be owned by larger companies, such as NBC Sports Philadelphia, which is owned largely by Comcast, the ultimate owner of the NBC network, and a minority interest owned by the Philadelphia Phillies. The MLB may carry a few games here and there, but that at best implies licensing for individual games, rather than a team giving full season rights to the League. In any event, the teams are the owners of the rights to these broadcasts and then license them out to other networks and distributors.
The NFL broadcasts are likely copyrighted material belonging to the League itself as the rights were likely assigned by the individual teams in connection with joining the League. Worth noting is that the NFL owns the rights to regular and post-season games, not preseason, nor pregame post-game coverage per se. Individual teams also have the right to produce their own pre- and post-game coverage, as seen most recently with the Pittsburgh Steelers and KDKA-TV’s recent media deal that runs through 2027. The NFL has the rights to negotiate it’s tv rights and these rights affect ALL teams. Games are still broadcast regionally across the country; however, the League licensed the rights to the broadcast to the regional markets depending on market analytics (i.e. the East-Coast playing the Bills-Patriots game while the West-Coast watched the 49’ers play the Dolphins (even though it was played in Miami).
As it relates to the regular and postseason game coverage, the NFL licenses the rights to networks such as Amazon, Fox, Disney (which owns ESPN and ABC), Comcast (which owns NBC), Netflix, and even Nickelodeon. For example, in 2022, the NFL and Amazon struck a licensing agreement where Amazon would have exclusive license to broadcast all Thursday Night Football games for 10 years, beginning in 2023, a deal that is worth approximately $10 billion dollars. This makes the argument of assignment of certain rights all the more compelling.
The NBA is no different, the NBA licensed the rights to its games to Disney, Comcast, and Amazon for 11 years, a deal worth $76 billion dollars. Being able to make such agreements strongly implies but is not indicative of the existence of an assignment.
There is a one-off argument that could be made that the broadcasts of these games are work-for-hire commissioned by the Leagues, as the League “hires” these teams to perform and compete. In such an instance, the Leagues are the owners of the copyrights to the broadcast. However, the more likely scenario is that the teams own their rights, but by way of a collective bargaining or some other agreement to be involved with the Leagues, certain rights had to be assigned to the Leagues and the Leagues, with full rights, license to other networks and distributors.
Of course, this is speculative and in order to truly know, one would need to see the paperwork, but still, it’s something that makes you think! While things such a broadcast may seem so simple and direct, there are a lot of moving pieces that come to making such a production possible. As new streaming platforms emerge, existing licensing agreements may face challenges. It remains to be seen whether these platforms can enter the market or if incumbents will maintain dominance.
Stephon Burton is a DC and PA licensed attorney with Sneakers & Streetwear Legal Services, a Business and Intellectual Property law firm focusing on Fashion, Sports, and Entertainment based in NYC. He can be contacted on LinkedIn and X (formerly Twitter).