David Hejmanowski: Avoiding the zombie lawsuit


David Hejmanowski - Case Study

“We take very seriously our responsibility to protect the vast majority of fans who do not want their viewing experience spoiled.”

— Olivia Dupuis, AMC

VP of public relations

“ESPN will be operating within restrictions on usage of video.”

— Andy Hall

ESPN communications

Certain companies and entities have well-earned reputations for zealously protecting their intellectual property. Among entertainment companies, Disney has long been active in going after those who violate their protected characters, films and stories. Technology companies are similarly aggressive in ensuring the sanctity of their developments.

This week has brought two stark new examples of how traditional entertainment and digital media have led companies to take extraordinary steps to protect their investments.

If you’ve been following the Olympics in Rio, you’ve likely been doing so by watching NBC, using the NBC Olympics app, or visiting NBC’s Olympics site online. You’ve probably not been seeing much coverage on other news networks, on other sports apps or on SportsCenter on ESPN. That’s because NBC paid $7.65 billion to get exclusive rights to cover the Olympics through 2032.

After shelling out that kind of money, NBC and the International Olympic Committee certainly aren’t about to allow ESPN to do 30 minutes of Olympics highlights every hour at the same time that NBC is trying to get viewers to watch their Olympics coverage. That’s why there are highly specific rules on what ESPN is allowed to show.

NBC and the IOC have informed ESPN that they will take legal action if the network shows any highlights at all before NBC’s Olympics coverage has ended on the West Coast — that’s 3 a.m. our time — meaning that any SportsCenter coverage is already a day old. Further, they have prohibited any ESPN news program from using more than six minutes of total Olympics coverage. And if you think the 3 a.m. limitation is bad, NBC also says that ESPN can’t use anything that’s older than 72 hours.

The IOC has been so tight in protection of Olympics coverage that Comedy Central’s fake game show “@Midnight” put the phrase (tongue in cheek) “non trademark infringing” right in the title of their faux-Olympics series of shows this week. The limitations on Olympic coverage end 24 hours after the conclusion of the closing ceremonies.

NBC isn’t the only network taking a hard line on their investment this week. AMC has apparently contacted websites that are posting spoilers about the upcoming season premier of their hit television program “The Walking Dead,” threatening legal action against them if they give away the cliffhanger ending of last season’s finale.

The actions by NBC and AMC come down to copyright and protection. The IOC has a right to protect the use of its product, in this case the Olympic events themselves. It has licensed that product to NBC and NBC therefore has the legal ability to protect its purchase of those rights. The Olympic situation is complicated by the fact that the Olympics are also a news event and, just as ESPN has the right to report briefly on the results of an NFL or MLB game, NBC can’t prevent them from all coverage of the games.

AMC, on the other hand, is protecting an original product. The derivative use of that product to produce or release spoilers is not only an extension of the original creation, but also devalues it in the general marketplace. Their copyright claim is even clearer, therefore.

These situations become more complicated each year by the expansion of available media platforms that require even greater diligence for the producers of intellectual property to protect what they’ve created. Let’s just hope that they don’t combine their products. Zombies that can run like Usain Bolt would be really terrifying.


David Hejmanowski

Case Study

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.