By Colin Conerton

Last weekend, during NASCAR’s Nationwide Series DRIVE4COPD 300 at Daytona Speedway, a horrific accident occurred on the final lap as racecars collided sending tires and other debris flying over the protective barrier and into the stands at hundreds of miles per hour and seriously injuring more than 20 spectators. As one might imagine, much of this tragedy was captured on personal recording devices (e.g. cellphones) and immediately posted on YouTube for others to view. Almost immediately after being posted online, NASCAR contacted YouTube demanding the videos of the crash be removed on copyright grounds. To demonstrate to YouTube that a copyright violation had occurred, NASCAR likely pointed to the back of its tickets, which indicate NASCAR “owns the rights to all images, sounds and data.” NASCAR later issued a follow-up statement indicating that it requested the fan video be removed not because of a copyright violation (although YouTube claimed it did), but because, “[t]he fan video of the wreck on the final lap of today’s NASCAR Nationwide Series race was blocked on YouTube out of respect for those injured in today’s accident. Information on the status of those fans was unclear and the decision was made to err on the side of caution with this very serious incident.”

Regardless of the actual reason NASCAR moved to block the videos from existing online, YouTube quickly reversed the video takedowns, stating “[o]ur 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.” All this leads to an interesting legal question – does NASCAR own fan videos taken at NASCAR races, particularly in circumstances where the video could be considered news reporting?

Under copyright fair use doctrine, “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as . . . news reporting . . . is not an infringement of copyright.” As attorney and professor Chip Stewart points out, the answer boils down to whether “a recording of a fact is a fact.” If the answer is affirmative, then it would seem the fans video recording of the accident and subsequent injuries were facts, and fall under the fair use doctrine. In fact, as Mr. Stewart points out, the sports world has already dealt with a similar question in “’the 1997 case of NBA v. Motorola, in which the 2nd Circuit Court of Appeals said that the NBA couldn’t prevent Motorola from broadcasting live game scores on a pager service — those were facts, not something the NBA could copyright and own.’”

Given that NASCAR is denying requesting YouTube take down the videos because of copyright violations, it is impossible to tell whether NASCAR truly believed a copyright violation had occurred by the fans posting. That being said, if you ever find yourself at a NASCAR event, and attempting to capture parts of the race on video, you must wonder, “is this video really mine?”