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The sticky issue of digital rights in the modern age for the NBA and its players

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If players are producing original content for the NBA, should they also be paid for the reproduction of their work?

Steve Mitchell-USA TODAY Sports

With a possible renegotiation of the NBA's Collective Bargaining Agreement in 2017, commentators view it as a confrontation. The process could be looked on as a joint venture between the owners and the players, because they are both content producers.

The issue is similar to what happened to Paul McCartney of the Beatles, who was not happy paying Micheal Jackson royalties to perform his own songs: "The annoying thing is I have to pay to play some of my own songs. Each time I want to sing 'Hey Jude' I have to pay."

An NBA player would pay a distributor to watch himself perform afterwards on copyrighted media platforms. Athletes are not considered "authors" of their own works by copyright law, which limits that title to only eight fields:

  1. literary works,
  2. musical works, including any accompanying words,
  3. dramatic works, including any accompanying music,
  4. pantomimes and choreographic works,
  5. pictorial, graphic, and sculptural works,
  6. motion pictures and other audiovisual works
  7. sound recordings
  8. architectural works

There is an excellent reason behind this ruling, since a player could "invent" a particular signature move, such as a unique crossover move, copyright it and prevent other players from using it. This article goes on to point out that broadcasts and photographs are creative acts, not the event itself, and can be and are copyrighted as always mentioned on air: "Keep in mind, that the broadcast of a sporting event is absolutely protected by copyright. And of course, a photo of a sporting event is protected by copyright."

As quality content producers, a team like the Miami Heat and their players (several of which are current or former All-Stars with higher profiles than others), have more in common than thought. The recently negotiated deal between the NBA and ESPN and Turner Sports is only the tip of the massive iceberg of content distribution. In the 21st century other methods are increasing at an exponential rate.

Services such as Twitter, Instagram, Youtube and the behemoth Google, are spreading content created by players at the AmericanAirlines Arena and other venues on a massive scale as never imagined before. An author writes a song once, but the real money comes from the royalties it generates being replayed continuously in the aftermarket.

With not just the arrival of the internet years ago but the relatively recent explosion in popularity of social media, the entire issue of digital rights to performances has emerged. Events such as the Harlem Shake -- including the memorable Heat locker room video and the subsequent "live" version both starring LeBron James, Dwyane Wade, Chris Bosh and of course Mario Chalmers -- have been replayed thousands, if not millions of times, going "platinum" so to speak, yet the owners and players both are getting very little in return. With derivatives, such as Fantasy Leagues and game boxes, popping up almost on a daily basis, the revenue generated is growing too rapidly to comprehend.

The NBA and its players have a monopoly on its product, being joined at the hip in creating it. By the time the negotiators sit down at the table, the NBA and NBPA will realize they are parents of their digital offspring and differences should be quickly resolved for the benefit of both sides. Their common goal is settling on the maximum payback of ownership of the digital rights to their creative works.