Providing Unauthorized Link to Live Audio Webcast Likely Constitutes Copyright Infringement

Plaintiff, formerly SFX Motor Sports, Inc. (now Live Nation Motor Sports, Inc.), produces motorcycle racing events known as Supercross and broadcasts these races through radio, television, and the Internet. Defendant, Robert Davis (“Davis”), provided a link to audio webcasts of Supercross races on his website, www.supercrosslive.com. Plaintiff alleged trademark infringement, copyright infringement, and unfair competition. Plaintiff also sought a preliminary injunction, claiming that provision of live Supercross webcasts on Davis’s website would cause irreparable harm to SFX through lost revenue from the sale of sponsorships or advertisements on its website as the exclusive source of Supercross webcasts. Defendant filed a counterclaim against SFX, alleging trademark infringement, and sought a preliminary injunction to prohibit SFX from using the name “SupercrossLIVE.” The Court granted Plaintiff’s motion for preliminary injunction, denied in part Defendant’s motion to quash, denied Defendant and Counter Claimant’s motion for preliminary injunction, and denied as moot Plaintiff’s first supplement to Plaintiff’s motion for preliminary injunction.

Since copyright protection of live Internet webcasts was a new issue that has not yet been addressed in any circuit court opinions, the Court looked to opinions on copyright protection for live television broadcasts for guidance. National Football League v. PrimeTime 24 Joint Venture, 211 F.3d 10 (2d Cir. 2000) rejected the argument that satellite transmissions were not a public display or performance and held that unauthorized satellite transmissions of the NFL’s copyrighted live broadcasts of football games constituted copyright infringement. “We believe the most logical interpretation of the Copyright Act is to hold that a public performance or display includes each step in the process by which a protected work wends its way to its audience.” Id. at 12. Just as the unauthorized satellite transmissions were a step in the process by which protected football game broadcasts were publicly displayed or performed, Davis’s unauthorized website link was a step in the process by which protected audio webcasts were publicly displayed or performed. Therefore, Davis’s unauthorized link to live Supercross webcasts is a public performance or display that would likely constitute copyright infringement. Davis’s link does not constitute fair use because it does not serve a protected function, such as criticism, comment, or news reporting.

To prevail in a motion for preliminary injunction, a plaintiff must demonstrate: (1) a substantial likelihood of success on the merits; (2) a substantial threat of immediate and irreparable harm, for which he has no adequate remedy at law; (3) that greater injury will result from denying the injunction than from its being granted; and (4) that the injunction will not disserve the public interest. The Court found: (1) SFX is substantially likely to succeed on the merits because it has demonstrated ownership of the material as well as copying by the defendant; (2) there is a substantial threat of immediate and irreparable harm resulting from SFX’s lost ability to sell sponsorships and advertisements as the exclusive Supercross webcast provider; (3) greater injury will result from denying an injunction than from granting one since Davis is not entitled to any commercial gain through the unauthorized link; and (4) enforcing the Copyright Act by granting a preliminary injunction would serve the public interest. Hence, the Court enjoined Davis, his company, TripleClamps, and others acting in concert with them from providing an Internet link or otherwise displaying SFX’s audio webcasts.

The Court denied Davis’s motion for a preliminary injunction on the use of “SupercrossLIVE” because there was no evidence that he was likely to succeed on the merits of his trademark claim.

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