Intellectual Property

Crying Foul: Why Lebron's 'Uninterrupted' Copyright Claims May Be A Half-Court Shot

LeBron recently stated that he is confident the lawyers will figure it out, but they seem to have their work cut out for them.

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Sometimes it’s what you don’t (or can’t) protect that can cost you. When it comes to copyright law, this expression has a lot of merit.  Just recently, counsel for LeBron James (NBA superstar and future Hall of Famer, no doubt) and his “Uninterrupted” digital sports programming network sent a demand letter for the University of Alabama.  The claim?  That the university infringed upon the intellectual property rights in his web show “The Shop” held by himself and show co-creator Maverick Carter as part of Uninterrupted programming.   With respect to copyright law, colorable claims will not be an easy lay-up, and may be more like swishing a half-court shot (or at least a tough 3-pointer).

The dispute in question stems from online show called “Shop Talk” moderated by Alabama football coach Nick Saban.  In “Shop Talk,” Coach Saban talks to athletes as well as Alabama alumni about sports and other topics of interest in a barbershop setting.  The problem?  Lebron James and Maverick Carter’s multimedia platform “Uninterrupted” airs a YouTube program called “The Shop” that has Lebron James chatting with friends, sports stars, business associates and celebrities about a range of sports and other topics in — you guessed it — a barbershop setting a well.  In essence, Lebron James takes offense to the format and setting of “Shop Talk,” claiming it copied his “The Shop” series.

Why Lebron faces an uphill battle under copyright law deserves a short primer on the basics.  Copyright law protects “original works of authorship fixed in a tangible medium of expression… now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” See 17 U.S.C. Section 102(a).  Such works include but are not limited to literary works (such as books), dramatic works and audiovisual works. When it comes to such original works of authorship, however, copyright law only protects expression — it does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. Section 102(b).  Known as the “idea/expression dichotomy”, this interplay between ideas and expression is a fundamental doctrine under copyright law.

When it comes to “The Shop” versus “Shop Talk,” the idea/expression dichotomy is the first pick that needs to be overcome. The mere idea for a show where a sports figure interviews others informally will not be protectable.  When it comes to format, then the question really is whether doing so in a barbershop setting is itself enough to qualify as original expression.  As a practical matter, simply placing the interview format in a barbershop setting may not be enough.

Another issue that impacts any copyright claim in this matter is what’s known as the “scènes à faire” doctrine.  Literally translated as “scenes to be made” or “scenes that must be done,” the scènes à faire doctrine refers to commonly known elements common to a genre that are not protectable.  For example, a Western novel may contain a frontier town, a sheriff, a renegade outlaw, a posse (to track down the villain) and maybe even a good old-fashioned gunfight — these are all elements common in the Old West and not in themselves protectable under copyright law.  That said, a sheriff with a handlebar mustache, leather overcoat and wielding nickel-plated revolvers may be unique to a specific story and protectable.  With respect to the instant case, there are legitimate questions whether having a discussion with others while having your haircut in a barbershop may or may not qualify.

Lastly, there is the question of whether the merger doctrine prevents certain claims.  The merger doctrine basically states that certain ideas can only be expressed in certain ways, and that as a result, the idea “merges” with the expression and is not protectable. For example, extending the Old West theme from above, the idea of having an outlaw meet the sheriff of a frontier town on the main road in town for a showdown at high noon would not be protectable (to which any number of old westerns using this very idea will account). Lebron James’s attorneys will need to overcome claims that the “interview in a barbershop” format is an idea that can only be expressed in a limited way and, therefore, unprotectable under the merger doctrine.

Don’t get me wrong — I understand the frustration that Lebron James and his business partner Maverick Carter may feel given the similarities presented between the formats for “The Shop” and “Shop Talk.”  The problem, however, is that many elements of the format are simply not protectable expression, or otherwise present fact questions to determine whether such format elements qualify as protectable expression.  Thankfully, the demand letter encouraged a discussion between the parties before launching into litigation over the alleged infringement.  Apparently, LeBron recently stated that he is confident the lawyers will figure it out.  From my perspective, they seem to have their work cut out for them.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

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