New UFC Copyright Lawsuit Rejects Fair Use Defense For Documentary Makers

The UFC's ruthless approach to IP disputes often matches the brutality seen in the Octagon. UFC chief Dana White is famous for his rants against streaming pirates but this week documentary makers are feeling the heat. Their film features former UFC champion Michael Bisping and lots of unlicensed UFC action clips. Fair use, perhaps? Don't even try it, UFC warns.

bispingThe UFC’s reputation as the world’s leading mixed martial arts promotion is the result of almost three decades of hard work and unwavering dedication to combat sports.

One way or another, grudgingly or not, every MMA fan owes the UFC a debt of gratitude. But there’s a corporate side to the UFC that’s much less palatable and, in many cases, highlights the company’s absolute reliance on the exploitation of IP rights.

Most professional MMA fighters want to fight in the UFC but complaints over poor pay are increasingly common. Contracts that ban fighters from being independently and visibly sponsored at the most lucrative times are another point of contention. Add in training camp bills and other expenses, some fighters say they barely break even. The UFC claims that fighters always get the deal they signed up for, but the balance of power is rarely equal.

If fighters underperform, they’re out, but the contacts they sign grant company-related image rights to the UFC until the world comes to an end – literally. If fighters do well under contract but want to leave or make money in another sport, people not called McGregor needn’t apply. Whatever happens, the UFC can put any fighter in a videogame 5,000 years from now and still have permission to use their likeness, complete with licensed tattoos.

The reasoning behind these perpetual licenses goes beyond the UFC’s desire to grab most of the money. The UFC doesn’t employ any fighters, they’re technically independent contractors, so as far as fight-capable flesh-and-blood is concerned, the UFC has no obvious assets. The UFC doesn’t manufacture anything either, at least not in the traditional sense.

What the UFC does have is lots of smart executives, an extraordinarily valuable brand, equally lucrative trademarks, and an extensive copyright-protected back catalog that documents the history of MMA in the United States and beyond. The library continues to grow every week with new and exclusive content, meaning that there’s always something fresh to broadcast or make available on license.

The bottom line is that without its intellectual property, the UFC wouldn’t even be called that anymore. That’s why a company who used UFC footage without a license has prompted a new big-money copyright lawsuit.

Bisping: The Michael Bisping Story
Born in Manchester, England, Michael Bisping is a former UFC Middleweight Champion. He was rightfully inducted into the UFC’s Hall of Fame in 2019 and like many fighters has interesting tales to tell. At this very moment the documentary ‘Bisping: The Michael Bisping Story’ is available to stream on dozens of platforms but despite UFC boss Dana White actually being in it, the MMA promoter is no supporter.

In a copyright infringement complaint filed at a California district court this week, Zuffa LLC (d/b/a UFC) names Canadian company 2107697 Alberta Ltd (d/b/a Score G Productions), Canadian Adam Scorgie, Electric Panda Entertainment, and Does 1 through 10 as defendants.

UFC says it has 675 million fans who enjoy 40 UFC events every year. UFC programming is broadcast in 175 countries and territories to 1.1 billion households in 40 languages, via the internet, cable, and satellite. UFC’s VOD platform, UFC Fight Pass, offers thousands of fights, events, and original content all over the world. If people want access to content, UFC will license it to them.

“Given that UFC’s business depends in large part on its intellectual property and, more specifically, the copyrights it holds, it is not surprising that UFC licenses fight clips — including, of particular relevance here, ‘fight finishes,’ i.e., the final few seconds before the knockout, technical knockout, submission, etc,” the UFC complaint reads.

“And, indeed, many customers, including other filmmakers, have licensed UFC’s clips through this channel. But not Score G. Unable to make a compelling presentation about Michael Bisping on its own, Score G decided to exploit UFC’s intellectual property without permission or obtaining a license for its use.”

The complaint alleges that 19 minutes of the Bisping documentary is UFC fight footage, culled from 24 different UFC registered copyright works and displayed via 160 short clips. The UFC describes the extent of the unlicensed use as “astounding”.

Bisping Told UFC About the Documentary
Bisping still commentates for the UFC, so when he mentioned the documentary to a UFC producer, the former champion was encouraged to have Score G contact the UFC to discuss licensing. That didn’t happen.

“Score G never even approached UFC to let UFC know what it was doing. Evidently, Score G believes that it did not need to license the Broadcasts from UFC because the film is a documentary,” the UFC’s complaint reads.

Whether a fair use conversation actually took place is unclear, but the UFC says the strategy won’t work here. Documentary makers regularly license UFC content, and the UFC licenses content for use in its own broadcasts too.

“[I]f Bisping is fair use, 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 company warns.

The documentary is available digitally for rent or purchase on Amazon, DirecTV, iTunes, Microsoft, Google Play, Redbox, Spectrum, Vudu/Fandango, and YouTube. There are also plans to air the documentary on TV and distribute via other streaming platforms. The UFC is not thrilled about that given the circumstances.

UFC is Not Suing Bisping Himself
The complaint names Michael Bisping as a producer but the UFC accuses him of nothing. As for the other defendants, they all stand accused of copyright infringement or contributory copyright infringement, depending on which parties created the documentary and/or financed it.

The UFC lists almost two dozen copyrighted UFC events as sources for the clips in the documentary, describing the defendants’ infringement as willful. For each work the UFC demands maximum statutory damages of $150,000.

The UFC supplements these infringement claims with corresponding claims for violations of the DMCA’s anti-circumvention provisions. The clips used in the documentary are reportedly high quality, so there’s a suspicion the documentary makers may have ripped them from Fight Pass or another source. Since all UFC content is protected, UFC believes that violations of 17 U.S.C. § 1201 must have taken place.

The UFC also seeks an injunction to prevent further infringement but any suspension of the documentary could also hurt Bisping, a loyal, long-term business partner.

As for arguments for and against fair use, it’s much too early to say, but a loss could potentially cause damage to the wider UFC licensing business. The company would never risk that so it’s probably confident that an early win by submission is a foregone conclusion.