The NFL has a new social media policy for its 32 teams, and to many, it looks somewhat draconian: teams can now be fined up to $100,000 for posting certain in-game video footage or GIFs to their social media accounts. The media coverage of the news has had a dire tone. “NFL bans teams from posting videos,” wrote Fortune. “NFL teams could face huge fines,” ran the headline at The Verge. “NFL threatens to fine teams,” wrote NESN.
But the NFL’s social media chief, a man named Tom Brady (no, not that one), says the policy is more nuanced than that. Brady spoke exclusively to Yahoo Finance to explain and defend the changes. He says most news stories about the policy got it wrong: “Everyone has focused on the fining, or that we’re clamping down, whereas the reality is the overall policy is evolving to allow teams to do much more than before.”
Here’s how the policy actually works: teams cannot post in-game footage to their official social media accounts on their own, independent of the league; they can only post footage that the NFL has first dropped into an internal server for the teams to access. But the NFL will put more content on that server than ever before.
To cite a specific example: during Sunday’s game in Foxboro between the New England Patriots and Cleveland Browns, tight end Martellus Bennett scored a touchdown, then attempted to “Gronk spike” (hurl the ball down at the ground like Rob Gronkowski) in celebration, but the ball slipped from his hand. It was funny. An animated GIF of the moment made the rounds right away on Twitter.
Martellus Bennett attempted the Gronk spike and failed pic.twitter.com/8aVh8Lrrcb
— The Cauldron (ICYMI) (@CauldronICYMI) October 9, 2016
Beginning on Wednesday, when the policy kicks in, the Patriots account would not be able to post that highlight until and unless the NFL has. Once the @NFL account has tweeted it, the @Patriots (or any other team) can retweet it. The teams can also tweet something out (or post on any social platform) even if the league hasn’t tweeted it, as long as the content has been placed on the official league server. (The teams cannot use Facebook Live or Periscope to stream live from a game anymore, either, period.)
What if there’s a big viral moment and the league doesn’t drop it into that server? Brady says it’s unlikely. The NFL’s social media team monitors what fans are talking about, and, “We really don’t think we miss much,” he says. If the league does miss something, teams are free to ask the league to post a certain clip for use, and the league may or may not comply.
Expanding the social content NFL teams can use
Brady says there is actually more content available to the teams now. “Previous iterations of the policy were more restrictive on the amount of content teams could post,” and that limit has been expanded. The league will add more content, during games, to its internal server.
Why limit the volume at all? “If we allowed the clubs, and ourselves, to put every single bit out there,” Brady reasons, “there could end up being a lot of noise.”
So, why the change now, more than a month into the season?
“As social media has continued to grow, we needed to update and evolve our policy,” says Brady. Indeed: it has updated the policy three times in the past 18 months. Brady says the goal of the latest change is “to balance out the desire for the clubs to reach their fans with retaining the league’s value in the marketplace.”
The “marketplace” Brady means is “platform partnerships.” And while threatening its own teams with new fines ($25,000 on first offense, $50,000 on second, and $100,000 each additional time) may not boost the league’s perceived value among fans, it may please social media platforms, with whom NFL has cut more deals lately.
The NFL now has an official “Discover” channel on Snapchat; it has an official NFL channel on YouTube; and it sold Twitter the right to live-stream 10 Thursday Night Football games. It wants to hold the cards in these deals and carefully manage what the 32 clubs are doing.
“Twitter is very different from Snapchat, and Snapchat is very different from YouTube, and YouTube is very different from Facebook,” says Brady. “And all of those are different from the club websites and NFL.com. We believe there’s a lot of great content to go around.” But the NFL wants to be first to post that content. The “game window,” as Brady calls it, will be controlled by the league.
Brady stresses that NFL clubs are still free to post what he calls “pop culture GIFs” any time they want: animated, humorous, non-gameday clips. He gives this rather uninspiring example: “A team scores a touchdown and they want to post an animated graphic that says ‘Touchdown!’ with an explosion behind it. That’s great.”
NFL fans won’t notice the change, NFL says
The most important thing, Brady says in defense of the policy, is that the typical football fan won’t notice any difference. “The fan just wants great content,” he says. “So whether at the league level or club level, fans can get more of that than ever before. That’s what we believe.”
Critics may disagree. But the league’s contractual relationship with its 32 teams allows the NFL to dictate policy. The same isn’t so black-and-white, however, when it comes to the NFL threatening media outlets over NFL video footage.
That issue is separate from the NFL’s policy for its own teams, and the NFL has not announced any change (at least publicly) to how it deals with media outlets. But the news of the changes to its team policy has functioned as an incidental warning to sports media, according to a handful of social media editors.
This issue came to the forefront last year when Twitter temporarily disabled the account of the sports blog Deadspin. It happened over a DMCA (Digital Millennium Copyright Act of 1998) notice the NFL sent Twitter over Deadspin’s unauthorized use of game footage.
When media outlets post unauthorized NFL social content
The NFL often sends notices when media outlets post NFL video footage on social media without permission—but not always. It‘s simply too hard to catch them all. (Brady and the NFL declined to comment on how the league deals with media outlets that post unauthorized footage.)
Ann Bartow, copyright law professor at the University of New Hampshire, likens it to a game of whack-a-mole. “I do understand their frustration,” she says, “because it is their intellectual property. But on the other hand, what are they really losing when these clips go up? In my professional experience in copyright, places like Deadspin cultivate fans, and the cost is very small of whatever revenue you think you’re losing when Deadspin posts a clip, so [taking action] is unhealthy, in my view.”
It isn’t just Twitter that enforces DMCA notices on behalf of sports leagues, but Twitter has a reputation among sports media for being strict with enforcing takedown notices, particularly about 6-second Vine videos (Twitter owns Vine). Facebook (and Instagram, which it owns) is known to be mild in its enforcement, which may be surprising, considering Facebook’s reputation for wanting to control content.
To circle back to the same example from Sunday of Martellus Bennett botching the Gronk spike, various sports media outlets tweeted out that clip, such as The Cauldron, a sports blog that runs on Medium. Jamie O’Grady, editor-in-chief of The Cauldron, says the site did not receive a takedown notice for the GIF.
Media outlets that do receive a takedown notice from the NFL likely have a good argument that their post qualifies as “fair use” under the Copyright Act. Bartow of UNH Law says the argument depends on the origin and nature of the content. If a fan takes a grainy photo of his TV, and a media outlet retweets it, the outlet has a good fair use argument. But a high-resolution GIF, created by the outlet itself, is more likely to provoke action, even though it is typically thought that when someone adds their own work to content (like layering on animation or special effects) it strengthens the fair use argument. “Fair use actually favors low quality, because it doesn’t compete with primary material,” says Bartow. “That’s sort of a ridiculous thing but it’s true. So a low-quality fan video would fall into fair use more.”
Fighting a DMCA notice comes with legal cost, and most outlets simply can’t take the time or money to deal with it. “I think it’s clear that if anyone ever felt like litigating this, fair use would win out,” says O’Grady of The Cauldron. “There’s the fact that no one is monetizing this; the fact that these are very brief snippets; and finally, that you actually do have to take individual screenshots and lace them together, so you are creating something, you’re not just taking from a broadcast. But none of the little guys can afford to litigate. Maybe somebody can call Peter Thiel, maybe he’s interested.”
Even when an outlet might have a good claim, the NFL has a different “hammer,” as Bartow puts it, in its legal arsenal: threatening to restrict future access. “And that’s what happens all the time, unfortunately,” says Bartow. “Big companies or sports leagues can prevent this stuff all the time by threatening that hammer.”
Week 6 of the NFL season starts on Thursday. Expect to see fewer NFL videos from sports blogs on social media, but more videos from the official accounts of your favorite team—after the NFL has made them available.