UFC sues documentary production team in copyright dispute

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At a time when the last dance, Athlete A, Untold: The Girlfriend Who Didn’t Exist and other popular documentaries highlight copyrighted audiovisuals of athletes, UFC is suing the producers of Bisping: The Story of Michael Bisping on the use of unauthorized videos. The case could set an important precedent for leagues and documentarians seeking their footage.

The UFC filed a copyright infringement lawsuit in federal court in Los Angeles last Thursday, naming Score G Productions and other companies as defendants. Bisping, released in March, chronicles the life of the 43-year-old former UFC fighter, who serves as the film’s executive producer. Competing between 2004 and 2017, Bisping became the UFC middleweight champion and Cage Rage light heavyweight champion, and he was inducted into the UFC Hall of Fame in 2019.

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The UFC complaint, written by attorneys Michael Kump and Nicholas Soltman of Kinsella Weitzman Iser Kump Holley in Santa Monica, explains that the UFC only learned about the documentary “because Bisping himself. . . reached out to a producer contact at the UFC. The UFC employee, in turn, “encouraged Bisping to ask Score G to contact the UFC to discuss licensing.”

This contact never took place.

The UFC asserts that the extent of intellectual property borrowing in Bisping “is amazing.” There are 24 copyrighted works spread across 160 clips or scenes, which is approximately 19 minutes of the film’s 109-minute runtime. Almost a fifth of the film is based directly on UFC copyrighted works.

Even worse, according to the UFC, Bisping borrows “substantial portions of UFC’s most famous fights,” including portions of UFC 194, when Conor McGregor defeated Jose Aldo in just 13 seconds, and UFC 100, when Dan Henderson knocked out Bisping.

The UFC insists that Score G (and other defendants) grossly violated audiovisual works registered by the UFC with the US Copyright Office. The league seeks damages reflecting, among other harms, loss of license rights and diminished value of copyrighted works. He is also seeking an injunction prohibiting Score G from using these works and “circumventing technological prevention measures”.

In the coming weeks, lawyers for Score G will respond to the complaint and attempt to refute the allegations. The UFC’s complaint acknowledges one likely defense: fair dealing, in which certain types of copying are deemed lawful.

Ryan Vacca, a copyright law professor at UNH Franklin Pierce School of Law who has represented clients on intellectual property issues in the sports and entertainment law industries, explains that fair use “incredibly depends on facts”. Under copyright law, fair use is determined by balancing several factors.

One of the factors is the purpose and character of the use. Bisping, Vacca notes, is “clearly commercial” since it’s sold, and that benefits the UFC. But he warns the appeal isn’t so clear on transformative use, which if found by the court would benefit Score G. Bispingpoints out Vacca, is marketed “as a biography of Michael Bisping”, which “seems to be quite different from the UFC’s original use of fight videos, which was presumably to entertain UFC fans during live events or after by allowing fans to watch the fight again.”

Vacca also notes that the amount of copy is crucial; the more copy, the worse it is for G-Score. That 17% of the movie made up of copied content reflects “a fairly large amount”. But Vacca adds, “it would be nearly impossible” to tell a story of Bisping’s UFC career “without the UFC videos.” Vacca also says the importance of the clips over the fights is key. The more significant parties are represented, the more difficult it would be for G-Score to establish fair use.

Market effects also influence the analysis. Vacca draws attention to the UFC’s claim that other documentary makers regularly ask for permission and that Score G betrayed a custom of licensed fights. Pre-trial discovery, Vacca says, would either validate or disprove these representations. He also mentioned that the UFC has an advantage in litigating in the Ninth Circuit, where precedent on fair dealing in documentary films is shaped by the Ninth Circuit’s decision in Elvis Presley Enterprises, Inc. vs. Passport Video. In the Presley decision, the court took a narrow approach to fair use and, favorably for the UFC, emphasized the importance of commercial gain as a reason to reject fair use.

The UFC strongly disputes the potential applicability of fair use. The league argues that allowing copying of copyrighted content would trigger perverse incentives. “Whether Bisping is fair use,” the complaint charges, “then any network, studio, or producer could make a documentary about the UFC and devote most of the documentary to just rerunning fights, interviews, etc. of the UFC, all without the authorization of the UFC.

The lawsuit comes at a time when sports documentaries have become hugely popular, with the athlete sometimes playing a key role in content decisions. Carmelo Anthony, for example, is making a documentary about his basketball career. Vacca believes that athletes telling their stories through documentaries can inspire a range of viewers, and that music videos are essential for athletes to tell their stories. At the same time, Vacca warns, “producers should not be allowed to freely use copyrighted material they want just because they are producing documentaries featuring athletes.”

Judge Gary Klausner, who was the judge in the Equal Pay Act and Civil Rights Act litigation between USWNT players and US Soccer, presides UFC vs. G-Score.

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