Joe Hand Promotions Inc. (JHP), a pay-per-view distributor, sued CJ’s Bar & Grill and a bar employee for copyright infringement for livestreaming the August 26, 2017, fight between legendary boxer Floyd Mayweather and mixed martial arts fighter Conor McGregor without a commercial license. It was undisputed that rather than paying thousands of dollars to obtain the proper commercial license, CJ’s paid for a $99 personal license from Showtime Inc., the producer of the fight, used an HDMI cable to connect the personal device to the bar’s TV and charged a $6 cover fee to bar patrons on the night of the fight. The parties cross-moved for summary judgment. The district court held that because JHP did not own the copyright to the fight on the day that it aired, it lacked standing to sue as a matter of law, thus granting summary judgment to CJ’s.
On appeal, and as a matter of first impression, the Sixth Circuit held that based on the “special treatment” afforded to live broadcasts under the Copyright Act, JHP had a cause of action against the bar because the copyright was registered within three months of the fight’s live broadcast under Section 411(c) of the Copyright Act, reasoning based on Tennessee contract principles that the copyright owner (Showtime Inc.) and JHP intended for their post-fight agreement to formalize and reiterate existing transfers of rights from two prior agreements.
When the Mayweather vs. McGregor fight first aired on August 26, 2017, Showtime had not yet registered the fight as a copyrighted work. It was not until two months later, on October 26, 2017, that Showtime obtained a copyright registration. Thereafter, on November 21, 2017, Showtime contracted with JHP to give JHP the exclusive right to (1) distribute and publicly perform the fight live on August 26, 2017, and (2) sue anyone who livestreamed the fight on August 26, 2017, without paying for the required commercial license. Thus, the dispute centered on whether the agreement, entered into by Showtime and JHP (and signed by Mayweather as a nonparty) after the fight aired, provided JHP with standing to sue under the Copyright Act. Citing precedent from the Second and Ninth Circuits, CJ’s argued that JHP had merely a bare right to sue—not ownership of an exclusive right under the Copyright Act—because the fight had already aired when the agreement was executed.
In June 2017, before the fight aired, Showtime executed an agreement with Mayweather Promotions LLC whereby it granted Mayweather the exclusive right to exhibit, distribute and authorize the exhibition and distribution of the fight live. Mayweather then entered into agreements with smaller distributors such as JHP. In turn, JHP issued commercial licenses to bars and restaurants and collected fees (ranging anywhere from $3,700 to $15,700) based on the particular establishment’s occupancy limits. On August 1, 2017, also prior to the fight, Mayweather gave JHP an exclusive license to distribute and authorize the public exhibition of the fight. The court concluded that these two agreements, both of which took effect before the fight aired, carved out JHP’s exclusive right to license and distribute the fight to commercial establishments. Applying Tennessee contract principles, the court held that Showtime and JHP intended for the agreement to formalize and reiterate existing rights from the prior two agreements, in light of Showtime’s newly obtained copyright registration. Accordingly, JHP had the exclusive right to license and distribute the fight to restaurants and bars before the fight aired. It also had the exclusive right to distribute and publicly display the fight on its air date under Section 411(c) because the copyright registration was issued within three months of the live broadcast.
The court explained that copyright protection can arise before registration and, thus, although the status of the copyright may have changed when the registration was issued, the nature of the exclusive rights and interests held by Showtime, Mayflower and JHP “remained untouched.” For these reasons, the court concluded that JHP has a cause of action for copyright infringement against CJ’s (and anyone who violated its exclusive rights) on the day of the fight.
In light of that holding, the court found it unnecessary to address the bulk of the parties’ arguments, which concerned whether a party may retroactively transfer exclusive rights under the Copyright Act and whether a contractual right to sue, without more, is sufficient to confer standing.
Summary prepared by Sarah Schacter and Mary Jean Kim