Time Delay on Sports Broadcasts: In the wake of the FCC increasing the fines for indecency on television to upwards of $3 million, a number of networks have discussed plans to implement delays of up to five minutes during the broadcast of live events, to ensure that all indecent content is deleted before it reaches users. Although CBS recently decided not to implement a ten-second delay during the NCAA Tournament, other sporting events in the future could be subject to such a delay, in order to prevent liability on the part of the network.



Could the use of such a delay be a violation of intellectual property law? Under federal copyright law, the holder of a copyright has several exclusive rights, including the right to a public performance and the right to create a derivative work. But in the broadcast of a live sporting event, who is the copyright owner? In most cases, the networks and the sports league reach an agreement whereby the copyright is shared (thus, the announcement that you must have the expressed, written authorization of the NFL and CBS Sports). I am not certain of the exact contours of these arrangement, but the league has a claim to the intellectual property of what is being "publicly performed" on the field and the network has a property right in how that performance is shown to the audience.



However, the possibility exists that use of a time delay on the broadcast could violate the agreements between the sports property and the broadcast, especially depending on the level of censorship. If a player were to yell profanity or make an obscene gesture during a play in the game, could the network edit this out without changing the essence of the "performance?" Would this constitute a derivative work in violation of the rights of the sports property?



Currently, the country's concern over preventing indecency on network television will most likely trump any small concerns over intellectual property. However, as the political winds change and the issue of indecency retreats to the back of the line, sports leagues may grow leery of granting too much authority to the broadcasters. In the next round of television agreements, I would not be surprised to see this issue addressed and for a contractual agreement to be reached.

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