At a time when The Last Dance, Athlete A, Untold: The Girlfriend Who Didn’t Exist and other popular documentaries prominently feature copyrighted audiovisuals of athletes, the UFC is suing the producers of Bisping: The Michael Bisping Story over unauthorized video use. The case could set important precedent for leagues and the documentarians who seek their footage.
UFC filed a copyright infringement complaint in a Los Angeles federal court last Thursday, naming Score G Productions and other businesses as defendants. Bisping, released in March, chronicles the life of the 43-year-old former UFC fighter, who is an executive producer for the film. Competing between 2004 and 2017, Bisping became the UFC Middleweight Champion and the Cage Rage Light Heavyweight Champion, and he was inducted in the UFC Hall of Fame in 2019.
UFC’s complaint, drafted by attorneys Michael Kump and Nicholas Soltman of Kinsella Weitzman Iser Kump Holley in Santa Monica, explains that UFC only learned of the documentary “because Bisping himself . . . reached out to a producer contact at UFC.” The UFC employee, in turn, “encouraged Bisping to have Score G contact UFC to discuss licensing.”
That contact never occurred.
UFC says the extent of intellectual property borrowing in Bisping “is astounding.” There are 24 copyrighted works spread out over 160 clips or scenes, amounting to about 19 minutes of the movie’s runtime of 109 minutes. Nearly a fifth of the film directly relies on UFC copyrighted works.
Making matters worse, UFC contends, Bisping borrows “substantial portions of the UFC’s most famous fights,” including parts of UFC 194, when Conor McGregor defeated Jose Aldo in just 13 seconds, and UFC 100, when Dan Henderson knocked out Bisping.
UFC insists that Score G (and other defendants) blatantly infringed on audiovisual works UFC registered with the U.S. Copyright Office. The league seeks damages reflecting, among other harms, lost licensing fees and diminished value in copyrighted works. It also demands injunctive relief that would prohibit Score G from using those works and “circumventing technological prevention measures.”
In the coming weeks, attorneys for Score G will answer the complaint and attempt to rebut the claims. UFC’s complaint acknowledges a likely defense: fair use, wherein certain types of copying are deemed lawful.
Ryan Vacca, a copyright law professor at UNH Franklin Pierce School of Law who has represented clients on IP matters in the sports and entertainment law industries, explains that fair use “is incredibly fact-dependent.” Under the Copyright Act, fair use is determined by balancing several factors.
One factor is the purpose and character of the use. Bisping, Vacca notes, is “clearly commercial” since it is being sold, and that advantages UFC. But he cautions the call is not so clear on transformative use, which, if found by the court, would advantage Score G. Bisping, Vacca emphasizes, is marketed “as a biography of Michael Bisping,” which “seems to be quite different from UFC’s original use of the fight videos, which was presumably to entertain UFC fans during the live events or afterwards by allowing fans to rewatch the fights.”
Vacca also notes that the amount of copying is crucial; the more copying, the worse for Score G. That 17% of the film consisting of copied content reflects “a fairly significant amount.” But Vacca adds, “it would be nearly impossible” to tell a story of Bisping’s UFC career “without UFC’s videos.” Vacca also says the importance of the clips in relation to the fights is key. The more that important portions are depicted, the harder it would be for Score G to establish fair use.
Market effects also sway the analysis. Vacca calls attention to UFC’s claim that other documentary filmmakers routinely seek permission, and that Score G betrayed a custom of licensing fights. Pretrial discovery, Vacca explains, would validate or refute those depictions. He also mentioned UFC is advantaged by litigating in the Ninth Circuit, where precedent on fair use in documentary films is shaped by the Ninth Circuit’s ruling in Elvis Presley Enterprises, Inc. v. Passport Video. In the Presley decision, the court adopted a narrow approach to fair use and—favorably for UFC—emphasized the importance of commercial gain as a reason to reject fair use.
UFC firmly challenges the potential applicability of fair use. The league maintains that allowing the copying of copyrighted content would trigger perverse incentives. “If Bisping is fair use,” the complaint charges, “then any network, studio or producer could make a documentary about UFC, and devote most of the documentary to simply rebroadcasting UFC fights, interviews, and the like—all without permission from UFC.”
The lawsuit arises in a time when sports documentaries have become very popular, with the athlete sometimes playing a key role in content decisions. Carmelo Anthony, for example, is producing a documentary on his basketball career. Vacca opines that athletes telling their histories through documentaries can inspire a range of viewers, and that video clips are essential for athletes to tell their stories. At the same time, Vacca warns, “producers shouldn’t be permitted to freely use any copyrighted material they want just because they’re producing documentaries featuring athletes.”
Judge Gary Klausner, who was the judge in the Equal Pay Act and Civil Rights Act litigation between USWNT players and U.S. Soccer, is presiding over UFC v. Score G.