When Competition Is Brought into Play

(IPRinfo 5/2008)

Anette Alén
LL.M., researcher
Institute of International Economic Law (KATTI), University of Helsinki

In the German hartplatzhelden.de -case, the sports industry is once again challenging the dissemination of coverage of the(ir) games – only this time it concerns fans producing video clips of football matches. Amateur football matches.

Hartplatzhelden is an online platform, in which users can place their video clips, pictures and texts of amateur football matches (“unterhalb der Oberliga”). The content is sharable, publicly viewable and available free of charge. Users can also comment on the content and communicate with each other in various ways. They can become members of an e-community of football fans.

Football fans sharing video clips of amateur matches
The video clips available at hartplatzhelden.de do not concentrate on any specific league or team. Nor do they offer overall coverage of particular games or summaries of several games. Instead, each video clip of 20-40 seconds shows individual situations, goals or other incidents in (random) games selected and recorded by a spectator.

The Württembergischer Fußballverband (WFV) is the umbrella organization for clubs (with several teams) in the area of Württemberg. The WFV brought a lawsuit against Hartplatzhelden claiming that it was violating the interests of the WFV by making recordings of amateur football matches played under its organizational umbrella publicly available and viewable.
According to the WFV, it has the exclusive right(s) over commercially exploiting football matches organized by or under it – and Hartplatzhelden was hindering this. The WFV, therefore, sought the take down of the video clips in question from hartplatzhelden.de web site.

According to Hartplatzhelden, there was no competition between the Parties. In addition, there was no protected effort or achievement by the WFV. It was therefore not to be considered the organizer of the amateur football games in question. Rather, the organizer was the regional club in whose area any given match took place.

Public availability of clips meant unfair competition
Landgericht (LG) Stuttgart, i.e. the District Court, decided in favor of the WFV and forbade Hartplatzhelden from making available any video clips of football games organized by or under the WFV. The Court was of the opinion that the public availability and viewability of the recordings was unlawfully and without consent undermining the exploitation possibilities of the WFV. It was therefore forbidden, mainly on the basis of unfair competition law.

The Court stated that it was the intention of the WFV to start exploiting amateur football games in a similar manner on the Internet or in some other comparable manner. This potential competitorship was to open the scope of application of the Act on Unfair Competition (Gesetz gegen den unlauteren Wettbewerb (UWG)).

Only the WFV may commercially exploit the matches
Furthermore, the Court was of the opinion that only the organizer may commercially exploit sports events for which it bears the economic risks and offers the organizational prerequisites – and because of this risk bearing and activity. The organizational prerequisites offered by the WFV were considered indispensable for the existence of amateur football under it in its current form. Therefore, the WFV was to be considered the co-organizer (“der Mitveranstalter”) also with regard to individual games.

The effort or achievement (“die Leistung”) of the WFV in the context of amateur football was seen to consist inter alia of drawing up fixture lists and training referees. The Court also stated that it was irrelevant that the WFV contributed to the organization only in the run-up of the football matches in question.

Hartplatzhelden has appealed to Oberlandgericht (OLG) i.e. the Higher Regional Court of Stuttgart. The ruling of the first instance was, however, provisionally enforceable and was executed after the payment of a security by the WFV.

Fans sharing content that is not offered elsewhere
The fans were providing the information and emotional experiences they wanted and needed for themselves, which was not being provided by the sports industry. They participated in their beloved football in a way that was comfortable and convenient for them, they communicated with other fans, they shared (footage of) important and emotional moments.

It is also stated in the site of hartplatzhelden.de that amateur football is underrepresented in the nation-wide media: “In den überregionalen Medien kommt das Massenphänomen Amateurfußball kaum vor – zum Leidwesen der Spieler, Trainer und Fans. Nun wollen wir dem Amateurfußball, also dem wahren, echten und guten Fußball, ein Zuhause im Internet geben, das technisch und taktisch auf Ballhöhe ist —.” (; accessed Oct 27, 2008)

However, this form of ‘fan empowerment’ and participation was not welcomed by the sports industry. The Court also found that the public availability and viewability of the user-generated content undermined the exploitation possibilities of the WFV. It was precisely the form of dissemination that was considered to have the potential to meet the needs of several fans and therefore to have (commercial) value and be (commercially) exploitable as regards amateur football.

The platform definitely serves the interests of users. But it is precisely because Hartplatzhelden is meeting the needs of numerous fans and supplying what is demanded that it was undermining the exploitation possibilities of the WFV in the Court’s opinion.

What about the rights of the fans?
In addition, Hartplatzhelden was found to be using and profiting from the achievements (“die Leistungsergebnis”) of the WFV rather than achieving something itself.

In its judgment the Court did not find the fact that it was a matter of recordings by private individuals problematic. The content being user-generated raises, however, questions of IP rights, since the video clips on Hartplatzhelden are recorded, uploaded and downloaded by the users themselves.

According to the Terms of Use of the web site (“Allgemeine Nutzungsbedingungen”), the users should ensure that their recordings do not violate the rights of others and that they are produced taking notice of the organizer’s position – although sport as such is not considered to be protected subject matter and there is no sui generis right for sport event organizers in Germany – yet.

The users themselves may also be considered, for instance, the authors of their (audiovisual) works. Should the possible copyright or neighbouring rights simply yield to other considerations? Moreover, should not a person be able to choose the (plat)form and arena, how, where and with whom to share important and emotional moments and self-generated recordings?

Today, uTubemorrow?
The interplay between and across exclusive rights and competition law is ambiguous and restless. The relation between the traditional mass media of publishing and broadcasting and the new media of interacting and user-generating is unresolved. At the same time the ability to draw even fleeting lines may (paradoxically!) become more important than ever.

It is, namely, crucial to leave room for new forms of communication and community, for new media for communicating and community building offered by ever developing technology. Communication is certainly unlikely to be thoroughly privatisable – it is what we do every day.

But what if the potential for commercial exploitation resides precisely in the ‘personal’? It may be – although the commercial exploitation of individual amateur football matches may be far-fetched – that the potential at this level of practising and following football lies in compilations of highlights and in ‘fan empowerment’.

The real possibilities for (commercial) exploitation at amateur level may very well lie in user-generating and in activities such as Hartplatzhelden. More integrative, responsive and fan-empowering business models would, thereby, be awaited from the sports industry. The fans have in any case already shown their willingness to be empowered. Better yet: they have shown glimpses of their potential to generate and share content of interest. Is it all competition and no play?

The District Court judgment in hartplatzhelden.de -case is available at:
LG Stuttgart Urteil vom 8.5.2008, 41 O 3/08 KfH
lrbw.juris.de/cgi-bin/laender_rechtsprechung/document.py?Gericht=bw&Art=en&Datum=2008&nr=10220&pos=1&anz=273

The ruling of the Appeal Court (OLG Stuttgart) is expected by the end of 2008.

An article inspired by the hartplatzhelden.de -case will be published in Viestintäoikeuden vuosikirja 2008 (KATTI) in the beginning of 2009.

Update on 8 November 2010

“Hartplatzhelden.de” case proceeded up to the Supreme Court of Germany, Bundesgerichtshof (BGH), which on 28 October 2010 decided (case (I ZR 60/09) in favour of the administrators of the web site. The lower courts had accepted the view of the football association Württembergischer Fußballverband e.V that it should have the exclusive commercial exploitation rights in relation to the games. BGH held that the publication of the video clips, uploaded by fans, could not be considered as an unfair imitation of someone else’s protected work. Nor was the work of the association in organising football games protected in this way. The full decision is not yet available. The press release of the BGH is available on their web site. (phh)