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You're Not A Creator
Copyright Law and the Athletic Performance Gap
Who Owns The Game? – Part 1 | February 8, 2026
Part 0: Who Owns The Catch? — The overview
Part 1: You're Not A Creator ← YOU ARE HERE
Part 2: The Immaculate Theft — 50 years, $0 to Franco Harris
Part 3: The Residuals Gap — Why actors get paid forever
Part 4: The Taylor Swift Strategy — Reclaiming your masters
Part 5: The Hidden Revenue — What the NFL won't disclose
Part 6: The Video Game Loophole — Why Madden pays but highlights don't
Part 7: The International Comparison — How other countries handle sports IP
Part 8: The Case Nobody Will File — The lawsuit that could change everything
The Law Says You Didn't Create It
Here's the legal principle that determines who owns every highlight reel, every documentary, every "Greatest Plays" package ever produced:
U.S. copyright law (17 U.S.C. § 101 et seq.) protects "original works of authorship fixed in a tangible medium of expression."
That phrase—"fixed in a tangible medium"—is everything. It's why musicians own recordings, filmmakers own movies, and photographers own images. But it's also why athletes own nothing.
Let's break it down:
"Original works of authorship" means creative expression. A novel. A song. A painting. A screenplay. Something that reflects the author's creative choices and intellectual contribution.
"Fixed in a tangible medium" means the work must be captured in a stable form—recorded, written down, filmed, photographed. A live jazz improvisation isn't copyrightable until it's recorded. A speech isn't copyrightable until it's written or filmed.
Now apply that to sports:
An athletic performance is not "fixed." When Odell Beckham Jr. makes a one-handed catch, that moment happens live. It's a physical act, not a recorded work. Unless someone films it, there's nothing to "fix." And the instant it is filmed, the copyright belongs to whoever operates the camera, not the person being filmed.
An athletic performance is not considered "original authorship." Courts have ruled that sports events are not "intellectual creations." They are functional competitions governed by rules. A quarterback doesn't "author" a touchdown pass the way a composer authors a symphony. The play is a response to circumstances—defensive formations, game situations, physical capabilities—not creative expression.
So under copyright law, when Odell Beckham Jr. makes The Catch:
- The NFL (or the network) owns the broadcast (it's a fixed audiovisual work)
- The camera operator owns the footage (as a work-for-hire assigned to the employer)
- Odell Beckham Jr. owns nothing (the performance isn't copyrightable)
This isn't an interpretation. This is settled law.
17 U.S.C. § 101 (Copyright Act Definition):
"Copyright protection subsists... in original works of authorship fixed in any tangible
medium of expression, now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid of a machine or device."
WHAT THIS MEANS FOR ATHLETES:
• "Original works of authorship" = Creative expression (songs, films, books)
• "Fixed in a tangible medium" = Recorded, written, captured in stable form
• Athletic performances = Not considered creative authorship, not fixed until filmed
• Filmed broadcasts = Copyrightable, owned by broadcaster (not athlete)
COURT INTERPRETATION (NBA v. Motorola, 1997):
"The games themselves... are not 'original works of authorship' under the Copyright Act."
Sports events are not copyrightable. Broadcasts of sports events are copyrightable.
The athlete creates the event. The broadcaster creates the copyright.
RESULT:
The law treats athletic performances as raw material, not creative works.
The person who films the performance is the creator. The person who performs it is not.
Why Musicians and Actors Are Different
If athletic performances aren't copyrightable, why are musical performances and acting performances treated differently?
Because Congress explicitly carved out protections for them.
Musicians: Sound Recordings Are Fixed Works
When a musician records a song, that recording is a "phonogram"—a fixed sound recording protected under 17 U.S.C. § 114. The Copyright Act grants separate protection for:
- The musical composition (the notes, lyrics, melody—owned by the songwriter)
- The sound recording (the specific performance captured on tape/digital—owned by the performer or label)
So when Taylor Swift records "Shake It Off," there are two copyrights:
- The composition copyright (she wrote the song, so she owns the publishing)
- The sound recording copyright (whoever owns the master recording—originally Big Machine Records, now Taylor Swift via re-recording)
Every time the song plays on Spotify, both copyright holders get paid. This is federal law. It's automatic. Musicians don't have to negotiate for it—it's a statutory right.
Athletes have no equivalent. There is no statutory protection for "athletic recordings" the way there is for "sound recordings."
Actors: Residuals Are Contractual, Not Copyright
Actors don't own copyright to their performances either. When you act in a movie or TV show, the studio owns the copyright to the film as a "work made for hire" (17 U.S.C. § 201(b)).
But actors get residuals—ongoing payments every time their work is reused. These aren't copyright royalties. They're contractual payments negotiated through collective bargaining.
SAG-AFTRA (the actors' union) has struck multiple times to secure residuals:
- 1960 strike: Established residuals for films sold to TV
- 1980 strike: Secured residuals for home video
- 2000 strike: Negotiated residuals for DVDs and cable reruns
- 2023 strike: Won better streaming residuals and AI protections
The result: actors get paid every time their work generates revenue, even decades later. The cast of Friends still earns an estimated $20 million per year from reruns and streaming, 20 years after the show ended.
NFL players have no residuals. The NFLPA has never negotiated them. And without the leverage to strike effectively (short careers, no replacement for live games), they likely never will.
TIER 1: MUSICIANS (STATUTORY COPYRIGHT PROTECTION)
• Own sound recordings (17 U.S.C. § 114)
• Automatic royalties from streams, radio, sales
• Can reclaim masters after 35 years (17 U.S.C. § 203)
• Example: Taylor Swift re-recording albums = owns masters = earns all revenue
• Lifetime earnings from one hit song: $1M - $50M+
TIER 2: ACTORS (CONTRACTUAL RESIDUALS VIA UNION BARGAINING)
• Don't own copyright (studio owns film as work-for-hire)
• But earn residuals through SAG-AFTRA collective bargaining
• Get paid every time work is reused (reruns, streaming, syndication)
• Example: Friends cast earns $20M/year from residuals (20 years post-finale)
• Lifetime earnings from one successful show: $10M - $100M+
TIER 3: ATHLETES (NO COPYRIGHT, NO RESIDUALS, NOTHING)
• Don't own performances (not copyrightable under 17 U.S.C. § 101)
• No residuals (NFLPA never negotiated them, lacks leverage to strike)
• No ongoing compensation from footage reuse (highlights, docs, archives)
• Example: Franco Harris estate earns $0 from 50+ years of Immaculate Reception licensing
• Lifetime earnings from iconic moment: $0
WHY THE DIFFERENCE:
Musicians = Congress wrote protections into federal law (1976 Copyright Act)
Actors = Unions struck repeatedly to win contractual residuals (1960, 1980, 2000, 2023)
Athletes = Never organized to demand either. Assumed leagues owned footage. Lost in court when challenged.
The Performance vs. Broadcast Distinction
The legal distinction that destroys athletes' claims is this:
The performance is not copyrightable. The broadcast is.
When you watch a football game on TV, you're watching a broadcast—a produced audiovisual work involving:
- Camera operators choosing angles and shots
- Directors cutting between cameras
- Commentators providing narration
- Graphics, replays, slow-motion effects
- Production choices (lighting, sound mixing, editing)
All of that creative decision-making makes the broadcast a copyrightable work. And the copyright belongs to whoever produced it—the NFL, the network, or both via licensing agreements.
The underlying game is not copyrightable. Courts have ruled (in NBA v. Motorola, 1997) that sports events are not "works of authorship." They are unscripted, competitive events governed by rules. No one "authors" a football game the way someone authors a screenplay.
So the law creates a clean split:
- The game itself: Not copyrightable (public domain, anyone can describe it, report scores, etc.)
- The broadcast of the game: Fully copyrightable (owned by the producer)
Athletes exist in the "not copyrightable" zone. Broadcasters exist in the "fully copyrightable" zone. And when those two zones overlap—when a camera films an athlete's performance—the broadcaster's copyright wins.
This is why the NFL can use game footage in perpetuity. The footage is a copyrighted broadcast. The players are just part of the uncopyrightable event being filmed.
What About Right of Publicity?
If athletes don't have copyright, what about right of publicity—state laws that protect individuals from unauthorized commercial use of their name, image, or likeness?
Shouldn't that give athletes control over footage of themselves?
No. And here's why:
Federal copyright law preempts state publicity rights when the use involves a copyrighted work.
Section 301(a) of the Copyright Act says that federal copyright preempts (overrides) state-law claims if:
- The work falls within copyright's subject matter (broadcasts qualify)
- The rights being claimed are "equivalent" to copyright (publicity rights often are)
So even though players have a right of publicity under state law—meaning they can control commercial use of their name and likeness in endorsements, merchandise, etc.—that right doesn't apply when their image appears in copyrighted game footage.
The NFL owns the copyright to the broadcast. Using that broadcast is an exercise of copyright. And federal copyright law says state publicity claims can't interfere with copyright owners' rights.
This was tested in court. Players lost.
WHAT IS RIGHT OF PUBLICITY:
State law protection (varies by state) giving individuals control over commercial use
of their name, image, likeness. You can't use Tom Brady's face to sell a product without
his permission. This is why athletes earn millions from endorsements.
WHY IT DOESN'T APPLY TO GAME FOOTAGE:
Federal copyright law preempts (overrides) state publicity rights when the use involves
a copyrighted work. Game broadcasts are copyrighted. Using footage = exercise of copyright.
Copyright Act § 301(a) says state claims can't interfere with federal copyright rights.
THE LEGAL LOGIC:
• NFL owns copyright to broadcast (federal law)
• Player appears in broadcast (as part of the game, not as endorser)
• Using broadcast = lawful exercise of NFL's copyright
• Player's publicity rights don't override NFL's copyright
• Therefore: player can't stop NFL from using footage
RESULT:
Athletes can control their image in commercials (publicity rights apply). But they can't
control their image in game footage (copyright preempts publicity). The NFL owns the
broadcast. The players are just part of what was filmed.
The "Work Made for Hire" Trap
Even if athletic performances were copyrightable—even if the law treated them like musical performances—athletes would still lose under the "work made for hire" doctrine.
Under 17 U.S.C. § 201(b), when an employee creates a copyrightable work within the scope of their employment, the employer owns the copyright, not the employee.
This is why:
- A journalist's articles belong to the newspaper
- A software engineer's code belongs to the company
- A photographer's work belongs to the magazine (if staff, not freelance)
If athletic performances were copyrightable, they'd almost certainly be "works made for hire"—created by employees (players) within the scope of employment (playing football for the team). The copyright would belong to the team or the league, not the player.
So even in the best-case scenario—where Congress amended the Copyright Act to recognize athletic performances as copyrightable works—players would need to negotiate ownership through collective bargaining. It wouldn't be automatic.
And we already know how that negotiation would go: the same way it went for actors. Decades of strikes to win residuals that the league could revoke in the next CBA if players lose leverage.
Why This Matters Beyond Money
The copyright question isn't just about who gets paid. It's about who is recognized as a creator.
When the law says athletic performances are "not original works of authorship," it's making a value judgment: What athletes do isn't creative. It's functional. It's raw material for someone else's creative work (the broadcast).
This has consequences beyond revenue:
1. Athletes have no control over how their legacy is used. A retired player can't stop the NFL from using footage of their greatest moment in a promotional campaign they find objectionable. The league owns it. The player doesn't.
2. Athletes can't build wealth from their iconic moments. A musician who writes one hit song can live off royalties for life. An athlete who makes one iconic play gets paid once (their game salary) and never again.
3. Athletes are structurally excluded from media revenue. The NFL earns $10+ billion annually from media rights. A significant portion of that value comes from highlights, documentaries, and archives of player performances. Players see none of it directly.
4. The law entrenches the power imbalance. By defining players as non-creators, copyright law gives leagues permanent ownership of the product (game footage) without requiring ongoing compensation to the people who created the moments being sold.
This isn't just unfair. It's a legal framework that treats athletes as inputs, not authors. And that framework is worth billions to the people who own the copyrights.
Could the Law Change?
Technically, yes. Congress could amend the Copyright Act to recognize live athletic performances as copyrightable works, the way it recognizes live musical performances or choreography.
This would require adding language like:
"Athletic performances fixed in a tangible medium—including but not limited to game footage, highlight reels, and broadcast recordings—shall be considered original works of authorship, with copyright vesting in the performer or their assignee."
If Congress did this, athletes would have the same rights as musicians: ownership of their recorded performances, subject to negotiation with employers or leagues.
But this will never happen. Here's why:
1. No political will. Congress has no incentive to take on the NFL, NBA, MLB, and every major sports league. These organizations lobby heavily and contribute to campaigns. Athletes, as individuals, have no comparable political power.
2. Opposition from media companies. Networks, streaming platforms, and broadcasters profit massively from the current system. They would fight any change that threatens their ownership of sports content.
3. The NFLPA isn't pushing for it. The players' union has never lobbied Congress for copyright reform. It's never built a coalition with other sports unions to demand statutory protections. The fight has always been about salary and benefits, not intellectual property.
4. The legal precedent is settled. Courts have ruled definitively that sports events aren't copyrightable. Overturning decades of case law would require not just legislative action but a complete rethinking of what "authorship" means in the context of competitive athletics.
So the law won't change. Athletes will remain in the legal category of "non-creators." And the billions generated from their performances will continue flowing to everyone except them.
WHAT IT WOULD TAKE:
Congress amends 17 U.S.C. § 101 to define athletic performances as copyrightable works,
giving athletes ownership rights to recorded footage of their performances (subject to
work-for-hire negotiations with leagues/teams).
WHO WOULD OPPOSE IT:
• NFL, NBA, MLB, NHL (would lose exclusive ownership of footage)
• ESPN, Fox, CBS, NBC, Amazon (broadcasters profit from current system)
• Streaming platforms (rely on unlimited reuse of highlights/archives)
• Total lobbying power: $100M+ annually, deep political connections
WHO WOULD SUPPORT IT:
• NFLPA, NBPA, MLBPA (but have never lobbied for this)
• Individual athletes (no organized lobbying effort)
• Total lobbying power: ~$0
PRECEDENT TO OVERCOME:
• NBA v. Motorola (1997): Sports events not copyrightable
• Dryer v. NFL (2016): Copyright preempts publicity rights
• Baltimore Orioles v. MLBPA (1986): Telecasts owned by clubs
• 40+ years of settled case law treating athletes as non-creators
RESULT:
Reform requires overcoming powerful opposition, rewriting federal law, and reversing
decades of precedent. The NFLPA isn't fighting for it. Congress has no incentive to act.
It's not happening. Ever.
The Uncomfortable Conclusion
The reason athletes don't own their performances isn't because of a drafting error in the Copyright Act. It's because the law was written before sports became a multibillion-dollar industry, and by the time it mattered, the power structure was already locked in.
In 1976, when Congress passed the current Copyright Act, sports media rights were a tiny fraction of what they are today. The NFL's first major TV deal (1962) was worth $4.65 million annually. Highlight reels were niche content shown on local news, not global commodities sold to streaming platforms for billions.
No one thought to protect athletes because no one imagined footage of their performances would be worth this much.
By the time leagues started earning serious money from media rights—1980s, 1990s, 2000s—the legal structure was set. Courts had ruled that sports events aren't copyrightable. Leagues had negotiated contracts giving them perpetual rights to footage. The players' unions had accepted this arrangement (or failed to challenge it effectively).
And now, in 2026, changing the system would require:
- Convincing Congress to rewrite federal copyright law
- Overcoming opposition from the most powerful media companies in the world
- Reversing 40+ years of legal precedent
- Organizing athletes across sports to demand something they've never demanded before
None of that is happening.
So athletes will continue being the only major category of performers in America who generate billions in media revenue and receive zero ongoing compensation for it.
Not because they're less talented. Not because their work is less valuable. But because the law says they're not creators.
And once the law makes that determination, everything else follows: no ownership, no residuals, no control. Just one-time payment, then permanent extraction.
The camera operator who films The Catch creates a copyrightable work. Odell Beckham Jr., who makes The Catch, creates nothing the law recognizes.
That's not a bug. That's the system working exactly as designed.
RESEARCH APPROACH:
Randy directed focus: deep dive on why copyright law excludes athletes. Claude researched primary sources: 17 U.S.C. §§ 101, 114, 201, 203, 301 (Copyright Act provisions), NBA v. Motorola (1997), Dryer v. NFL (2016), Baltimore Orioles v. MLBPA (1986), and legislative history of 1976 Copyright Act. Every legal claim sourced to statute or case ruling.
FINDINGS:
• Athletic performances not "original works of authorship" (17 U.S.C. § 101)
• Performances not "fixed" until filmed; copyright belongs to broadcaster
• Right of publicity preempted by federal copyright (§ 301(a))
• Musicians have statutory protection (§ 114); athletes have none
• Actors win residuals via strikes; athletes lack leverage to do same
• Even if law changed, "work for hire" doctrine (§ 201(b)) would give copyright to employer
• Result: Athletes legally defined as non-creators, no path to ownership under current law
WHAT THIS MEANS:
This isn't fixable through litigation (precedent is settled). It's not fixable through CBA negotiation (leagues won't voluntarily share). It would require Congressional action (rewriting Copyright Act) or unprecedented union organizing (cross-sport coalition). Neither is happening. So the extraction continues: players create value, leagues own it, law enforces the arrangement.
NEXT IN SERIES:
Part 2 examines one iconic play (Immaculate Reception) and calculates exactly how much the NFL has earned from it over 50+ years while Franco Harris's estate earned $0. The theory becomes concrete: here's the player, here's the play, here's the revenue, here's the legal structure that ensures none of it goes to the creator.
Sources: 17 U.S.C. §§ 101, 114, 201, 203, 301; NBA v. Motorola, 105 F.3d 841 (2nd Cir. 1997); Dryer v. NFL, 814 F.3d 938 (8th Cir. 2016); Baltimore Orioles v. MLBPA, 805 F.2d 663 (7th Cir. 1986); H.R. Rep. No. 94-1476 (1976) (legislative history of Copyright Act). Full citations available on request.
Thank you for reading.
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