As UFC cracks down on unauthorized footage use, questions of 'fair use' arise

Holly Holm

If you frequent any of the gathering places for MMA fans on the Internet, chances are this has happened to you more than once.

You click on a link to a highlight video or a technical breakdown, or maybe even just a clip with a few seconds of last weekend’s fight, only to have the worldwide web tell you that it’s no longer available due to a copyright violation. If you’re on YouTube, you might be told that the owner of the content – most likely the UFC, but also sometimes Bellator – “has blocked it on copyright grounds.”

If you feel like you’re seeing these notices more often in recent months, you’re not alone. The UFC has long been an aggressive pursuer of copyright claims, though in years past it seemed to focus the bulk of its anti-piracy efforts on stopping illegal streams of its events.

Lately, however, the focus seems to have shifted somewhat.

The online MMA and grappling analyst known as “BJJ Scout” is the latest to find himself caught in this net. For the past several years, his videos’ detailed analysis, along with clips from fights or grappling competitions, have been widely disseminated among fans looking to learn more about the technical aspects of the sport. Even fighters and coaches have admitted to studying them closely at times.

But recently, BJJ Scout said, he had a number of his videos, including those examining techniques used by UFC fighters Dominick Cruz and Johny Hendricks, taken down from YouTube after copyright claims from the UFC.

This surprised him, he said, not only because some of the videos had been up for more than a year by then, or because other, more recent videos with UFC content were left untouched, but also because he thought his use of the footage qualified as “fair use” exempt from copyright protections.

“I don’t make highlights,” BJJ Scout, who would not give his real name, told MMAjunkie via email. “These videos are meant to critique and educate on the combat sports, and technique is the focus. I only use seconds of footage and the final work appears to me at least to be ‘transformative.’ It would also appear that this does not hurt the original copyright holder’s product, but rather increase consumption as well as spread awareness of the brand.”

These criteria are just some of the considerations that go into deciding whether someone’s use of copyright material is protected under the Fair Use Doctrine.

The four factors for determining whether something falls under fair use are laid out in Section 107 of the Copyright Act, and they include such considerations as “purpose and character of the use,” the exact nature of the copyrighted material, how much and how substantially that material is being used, and the overall effect of that use on the “potential market for or value of the copyrighted work.”

Uses of copyrighted material that are “transformative” have been upheld as fair use by the Supreme Court, such as in 1994 when the Court ruled that a 2 Live Crew parody of a Roy Orbison song had transformed the copyrighted material into a brand new work, as well as one that did not hurt the market for the original.

According to BJJ Scout, his breakdown videos were “manually detected,” meaning that a human being working on behalf of the UFC flagged the material as a copyright violation, rather than relying on YouTube’s “Content ID tool” to flag it automatically. He now has the opportunity to appeal YouTube’s decision, but doing so might ultimately open him up to a lawsuit under the Digital Millennium Copyright Act (DMCA).

But aggressive interpretation of copyright law may be falling out of favor with courts, according to Dr. Daryl Lim, the director of the Center for Intellectual Property, Information Technology, and Privacy Law at John Marshall Law School in Chicago.

“A lot of these are tributes, a lot are commentaries, and these really serve to increase awareness of the copyright owner’s market,” Lim said. “When these sorts of uses are concerned, courts are less willing to give credence to a copyright owner’s claim that they need to protect their market. Because at the end of the day, these are not the primary markets. You need to have some open space in order to have social discourse.”

Lim said he became familiar with the UFC mostly because of its penchant for going after perceived copyright violations. He described the UFC as “particularly active” in using automated crawlers to detect uses of its material online. (UFC officials did not respond to requests for comment on this story.)

But according to Lim, the legal situation with regard to repurposed copyrighted material is “evolving quite rapidly.” In September, a federal appeals court ruled against Universal Music Group in a high-profile fair use case that may ultimately set new boundaries and requirements for copyright owners requesting that material be taken down under DMCA.

“The days of carpet-bombing are over,” Lim said. “Copyright owners like the UFC need to take more of a targeted approach and do more due diligence on their side. I think they need to recalculate and decide how best to employ their resources against the fat cats, rather than just some person on YouTube.”

One content creator who seems to have found a way around the UFC’s crackdown is Rener Gracie. His “Gracie Breakdowns” of submissions and grappling positions used in recent UFC events have become popular post-fight viewing material among fans. But in 2011, Gracie’s use of UFC footage as a visual aid in those breakdowns played a role in getting his YouTube channel shut down.

“When you go out and you get on a YouTube or one of these huge portals where you can download content and show content – if you use copyrighted material, we’ve spent lots of money to make sure there are people out there that take that stuff down,” UFC President Dana White told MMAjunkie in 2011.

“This whole thing is ridiculous,” White added. “It’s a bunch of Internet goofballs on those [expletive] chat rooms saying, ‘Oh God, look what they did,’ and all this stupid talk of how we’re policing everything we do. Of course we do. We’re a major sports league just like any other sports league.”

According to Gracie, his account was initially closed after YouTube found it to be in violation of its “three strikes” rule, wherein repeat copyright offenders are essentially kicked off the video sharing platform. Only one of those was due to a UFC claim, Gracie said, and it was one detected automatically rather than flagged by a UFC representative.

Still, Gracie maintains that the UFC is right to go after those who use its footage, even under the guise of commentary and analysis.

Bryan Barberena and Sage Northcutt

“That’s not even a reasonable request, for me to say, ‘Hey, let me use this footage for free,’” said Gracie, who added that he has also been paid by the UFC to do similar breakdown videos in the past. “They worked, they paid money to make that footage happen, so for me to take it and put it in my video and capitalize on it, I don’t think that’s fair.”

These days, Gracie said, they use still photos rather than video footage as visual aids in their breakdowns, and fans don’t seem to mind. In fact, in a recent video analyzing Sage Northcutt’s submission loss and Ben Rothwell’s submission win, Gracie said, “we used a photo from you guys, from MMAjunkie, instead of video.”

Of course, that doesn’t end the copyright violation conversation so much as shift it. Most media outlets pay to send their own photographers to events in order to acquire those pictures, or else purchase them from the photographers who took them. Using those photos without permission still raises potential copyright issues, even if it’s less likely to be aggressively pursued by the rights holders.

Gracie said he has no problem understanding the UFC’s stance, partially because of how it might affect the UFC’s pay-per-view market.

“As soon as you know that the highlights and main moments of the fight are going to be available on YouTube tomorrow,” Gracie said, “you’re going to think twice about spending $60 to watch it.”

And yet, for all its efforts to crack down on those who disseminate its footage, that footage still seems to find its way online. In November, prior to former UFC women’s bantamweight champion Ronda Rousey’s title fight against current champ Holly Holm, the UFC sent out a strongly worded “advance notice” of potential copyright infringement, warning media members and websites not to post unauthorized highlights from the bout.

Still, GIFs and videos of Holm’s knockout win were available almost immediately on social media. Photoshops and memes featuring both still images and short clips are still available months later.

No one who knows where to look is likely to be thwarted for very long in a quest to see on Sunday morning what happened in the UFC that Saturday night. But, at least so far, it hasn’t decimated the UFC’s ability to monetize its material.

That’s a common story, not just in the digital age, but throughout the history of copyright law, according to Dr. Lim.

“Back when the DMCA was enacted, there was a lot of uncertainty as to how the wild, wild West of the Internet would play out,” he said. “As with every technological revolution, there’s always a concern that this is the end of copyright law, the end of content owners being able to monetize their content. But with each wave of technological innovation, whether from the time of the printing press all the way to streaming videos, it has only resulted in a better market for copyright owners. The sky is not falling down.”

Legally, it seems to be a fluid situation. Federal court judge David A. Nelson once referred to fair use as “one of the most unsettled areas of the law.”

As ours continues on a track toward become increasingly a “remix culture,” as Dr. Lim described it, courts may take a more negative view of companies that aggressively assert bad faith copyright claims.

But beyond the question of what rights holders can do is the question of what they should do, especially in instances where allowing some use of their material would likely only expand the audience for that material.

“The culture is changing,” Dr. Lim said. “I think that if they were smart, UFC would engage these users. Invite them to events, find some other way to monetize this activity, rather than just clamping down on them. Certainly in terms of a public relations angle, that would be much better for them.”

For more on the UFC’s upcoming schedule, stay tuned to the UFC Rumors section of the site.