IP lawyer asserts Big Ten’s ownership claims over Duke-Michigan is ‘fantasy theory’

Duke is going to stick it to the Big Ten. And, hey, Tony Petitti, you’re going to have to sue Duke in Greensboro to vindicate that fantasy theory of ownership. Good luck with that one in the Middle District of North Carolina. Bring snacks.

There is no copyright in a live sporting event itself. NBA v. Motorola settled this decades ago: the underlying athletic competition is not a “work of authorship” under § 102(a). What’s copyrightable is the broadcast: the fixed audiovisual production, with its directorial choices, camera angles, commentary, and graphics. So when the Big Ten says it “owns the broadcast rights” to a game that hasn’t been produced yet, by a producer it doesn’t control, in a venue it doesn’t lease, between two schools where only one is its member— that’s a contract claim dressed up in proprietary language. It is not a property right enforceable against the world.

This matters because the Big Ten’s only conceivable hook is the inter-conference agreement allegedly providing for alternating “shared territory” neutral-site games. That’s a contract between the Big Ten/Fox and the ACC/ESPN. Duke isn’t a party to it. Amazon certainly isn’t. Madison Square Garden isn’t. So whatever rights exist run between the conferences and their rights holders as opposed to against the world.

Reading between the lines, the actual contractual mechanism appears to be a reciprocity provision in the ACC-ESPN/Big Ten-Fox arrangements covering neutral-site games in metropolitan areas where both conferences have natural broadcast interest. The reported precedent — Duke-Illinois on Fox in DC, then Duke-Michigan to ESPN in DC as the “return” — suggests a genuine, course-of-dealing-supported alternation pattern.

But here’s where it gets shaky for the Big Ten:

First, “shared territory” is doing enormous work in this claim. New York is shared territory in some intuitive sense, but is every neutral-site game in New York automatically subject to alternation? What if Duke plays Wisconsin at MSG? Florida State plays Purdue at Barclays? The provision presumably has defined triggers, and we don’t know whether this specific game— structured as part of a school-driven, three-game streaming package rather than a conference-arranged neutral-site event—even falls within the contractual definition.

Second, the alternation theory assumes the prior DC game “counted” as ESPN’s turn. The reporting frames that as the Big Ten’s position, not as established fact. The ACC/ESPN may well dispute that characterization, particularly if the DC game was structured differently (e.g., as a Duke home game played off-campus, or under different licensing terms).

Third, and most importantly: the Big Ten’s deal is with Fox and the ACC’s rights holder. Fox doesn’t have a claim against Duke or Amazon. Fox has a claim against the Big Ten if the Big Ten fails to deliver, and the Big Ten has a claim against the ACC if the ACC breached. The remedy chain stops well short of enjoining the Amazon broadcast. Good luck with that.

There’s a lot to unpack there, but if McKenzie’s interpretation is right, it would seem that the Big Ten and Fox Sports have quite an uphill battle here.

The main issue, it seems, the Big Ten might run into is that Duke and Amazon are not party to the “shared territory” contract between the Big Ten/Fox Sports and the ACC/ESPN. If the Big Ten’s ultimate goal is to stop the Duke-Michigan game from airing on Prime Video and instead secure broadcast rights for that game, it’ll be difficult to obtain an injunction when Duke and Amazon are not parties to the contract the Big Ten is using to claim rights to the game.

Further, much of the Big Ten’s claim will hinge on the exact language of its contract with the ACC/ESPN. If the contract does not specify precisely how games will be allocated, and exactly which neutral-site games the alternation applies to, the Big Ten might find it difficult to develop a compelling case that the game is theirs.

Whether the Big Ten and Fox are actually pursuing legal remedies for the dispute is unclear. It is quite possible that the Big Ten and Fox are simply making a stink in hopes of extracting concessions out of the ACC and ESPN.

To be clear, this is just one lawyer’s opinion on social media, so we shouldn’t put a ton of stock in it. But if the Big Ten does decide to take the legal route, there seem to be a lot of question marks that would need to be addressed to achieve their desired result.

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