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IP Law Daily, COPYRIGHT—6th Cir.: Dismissal of infringement action over Mayweather-McGregor fight was based on a misreading of the record, (Sep 23, 2022)

Law Firms Mentioned:Jamie King, PC | Phillips & Bathke, PC
Organizations Mentioned:CJ’S Sports Bar | Joe Hand Promotions, Inc | Joe Hand Promotions, Inc.

By Matthew Hersh, J.D.

The exclusive right in question turned out to be owned before the fight, allowing its owner to bring the lawsuit.

A federal district court in Tennessee wrongly dismissed a lawsuit by sports event distributor Joe Hand Promotions, Inc., against a bar th ...

By Matthew Hersh, J.D.

The exclusive right in question turned out to be owned before the fight, allowing its owner to bring the lawsuit.

A federal district court in Tennessee wrongly dismissed a lawsuit by sports event distributor Joe Hand Promotions, Inc., against a bar that disregarded pay-per-view rates because it based its conclusion on a misreading of the record, the U.S. Court of Appeals for the Sixth Circuit has held. The court of appeal’s opinion, involving a dispute over the broadcast of a widely-watched 2017 prize fight, found that the distributor—contrary to the conclusion of the trial court—in fact owned the rights to the broadcast at the time the fight aired (Joe Hand Promotions, Inc. v. Griffith, September 21, 2022, Clay, E.).

The lawsuit involves the August 2017 fight between a world-famous boxer, Floyd Mayweather, and an equally famous mixed martial arts fighter, Conor McGregor. The Showtime network produced the fight and also partnered with event promoters to issue commercial streaming licenses to public establishments such as bars, movie theaters, and restaurants. In November of that year—two months after the fight took place—Showtime entered into an agreement with Joe Hand Promotions, a Pennsylvania-based distributor of pay-per-view sporting events. That agreement purported to grant to the distributor the right to distribute the fight as well as the right to sue infringers.

A Tennessee establishment, named CJ’s Sports Bar, chose not to play by the rules. It broadcast the fight live without paying for a commercial streaming license. So the distributor sued for copyright infringement. The bar claimed, in response, that the distributor had only obtained from Showtime the right to distribute the fight “live”—and yet it obtained that right only after the fight had taken place. That made the distribution agreement, the bar argued, effectively a nullity. A federal district court in Knoxville agreed with the bar, granting summary judgment in its favor and dismissing the lawsuit.

The promoter appealed the summary judgment ruling, leading to this appeal.

Promoter’s right to sue. The court reversed and remanded for entry of judgment in the distributor’s favor. The essence of the court’s ruling was simple: the district court had simply based its ruling on a misreading of the record. The distributor had in fact not obtained the right to distribute the fight after the fight took place. In fact, Showtime had granted the distribution rights to Mayweather Promotions, LLC two months before the fight—and that company in turn, passed on the rights to the distributor in question one month later.

Moreover, the court found, nothing in the later agreement between Showtime and the distributor contradicted this reading. The later agreement did purport to grant to the distributor the right to distribute the fight (as well as the right to sue infringers). The sports bar argued that the subsequent agreement was proof of the fact that the distributor actually did not obtain the rights to the telecast until after the fight took place. But the court of appeals disagreed. The November agreement was a barebones agreement entered into after Showtime registered the copyright it held in the telecast of the fight. Thus, the court reasoned, it was clear that the parties intended that agreement merely “to formalize existing rights in the wake of Showtime’s newly obtained [registration].” Thus, this agreement did not change the outcome.

Commentary. The court of appeals’ opinion contained one reference that some readers may find puzzling. The court rested its opinion, in part, on a unique provision of the Copyright Act that allows a copyright owner, in a case involving a broadcast that is fixed at the time of its airing, to bring a lawsuit even prior to the time that the copyright is registered as long as the registration takes place within three months after the broadcast. That provision, the court of appeals reasoned, allowed the distributor to bypass the traditional requirement that a copyright owner may sue only for infringements that occur at a time that it owns the right. But the court’s analysis appeared to blur the difference between the requirement of standing—which indeed requires ownership of the right at the time of infringement—and the requirement to sue only on a work that is already registered. Here, there was no question that the work was registered at the time of the lawsuit, because the lawsuit was not filed until 2020. The special rule for pre-registration lawsuits in the case of broadcasts, therefore, appears irrelevant to the court’s holding.

The Case is No. 21-6088.

Attorneys: Jamie King (Jamie King, PC) for Joe Hand Promotions, Inc. John T.D. Bathke (Phillips & Bathke, PC) for James H. Griffith, Jr. d/b/a .

Companies: Joe Hand Promotions, Inc;CJ’S Sports Bar

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