As Professors Aufderheide and Jaszi write in their book Reclaiming Fair Use (Chicago 2011), “fair use  becomes real only when people use it; like a muscle, it can shrink with disuse.”  Kudos then to fulltime high school teacher Rob Rang and NFLdraftscout.com, for which Rang moonlights as an NFL Draft analyst.  It must have been intimidating to receive cease and desist letters and phone calls from the lawyers for National Football Scouting, Inc., complaining that Rang’s disclosure of Player Grades devised as part of scouting reports sold to 21 NFL teams for $75,000 per year was a copyright infringement.  Rang and the website stood their ground, and last week a federal district court in Tacoma, Washington upheld their fair use defense.  The ruling in Rang’s favor, unlike Andrew Luck, was no sure thing.

National Scouting’s annual report to its member teams includes six pages of information along with an over-all numerical Player Grade for each of several hundred prospective draftees.  The report is provided to the teams under strict terms of confidentiality, and registered for copyright as an unpublished work.  In various posts during 2010 and 2011, Rang quoted National Scouting’s Player Grade for a total of 18 draft-eligible players.   He did not use any other portion of the National Scouting analysis.

The court first considered and rejected Rang’s argument that the Player Grades lacked the originality required for copyright protection, holding that they were not facts but rather copyrightable “numeric expression of a professional opinion.”  There was no established formula for assigning the grades: “National arrives at its grade through a weighing of subjective factors, such as personal character, leadership, and poise.”

Nonetheless, the court found that Rang was shielded from liability under the doctrine of fair use, after applying the statutory four-factor test.  Rang’s posts were transformative, the court held, because “Rang did not publish a wholesale list of the Player Grades; instead, he recited a grade and provided original commentary on the players and their draft prospects in his view.”  Consideration of the “amount of the work infringed” favored a finding of fair use, the court said, because “the portion of the copied material is small in comparison to the entire Scouting Report.  In the Scouting Reports, each player has six pages of detail, and Rang published only the overall Player Grades of eighteen players out of hundreds.  Even if the Player Grade is the most valuable part of the Scouting Reports, Rang took a small portion of the most valuable part.”

The court found that the “effect of the infringement on the market” for the original favored a finding of fair use because “even if National attempted to sell its Scouting Reports to the public at large, Rang’s disclosure of eighteen player grades does not compete directly with the material in the Scouting Reports, which includes six pages of information for each prospective draftee.”

Only the nature of the original work as unpublished weighed against a finding of fair use, but the court held this did not overcome the considerations.

Notably, the court’s reasoning implies that each individual Player Grade, standing alone, was a work of authorship entitled to copyright protection.  Using 18 works of authorship in toto would seem to present a weak case for the fair use defense.  But the court’s fair use analysis depends heavily on the fact that these were only a small portion of the National Scouting report which was apparently registered for copyright as one single unpublished compilation.  Would the result be different if National Scouting, for example, registered each player’s report separately?  If it registered each Player Grade separately?  This seems to place undue emphasis on the formality of registration.

National Scouting’s claim for misappropriation of trade secrets remains to be tried.  After that, baring a settlement, the fair use ruling will go up on appeal, a whole different playing field where, like many collegiate stars entering the NFL, its weaknesses may be exposed.