Full opinion text
AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW PRESEA, District Judge: Plaintiffs The National Basketball Association and NBA Properties, Inc. (collectively, “NBA”) bring this aetion complaining primarily of the sale of SportsTrax, a portable electronic beeper device created and marketed by defendants Sports Team Analysis and Tracking Systems, Inc. (“Stats”) and Motorola, Inc. (“Motorola”) (collectively, “defendants”) which provides real-time information about NBA basketball games. NBA also complains of Stats’ transmission of real-time accounts, descriptions, and information relating to NBA games on America Online, Inc. (“Stats’ AOL site”). NBA alleges claims for infringement under the Copyright Act of 1976,17 U.S.C. § 501; commercial misappropriation under New York common law; false advertising and false designations of origin under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); and violations of the Communications Act of 1934, 47 U.S.C. § 605. Motorola alleges a counterclaim for NBA’s tortious interference with its contractual relations with four NBA teams. NBA moved, by order to show cause, for a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure. Following oral argument, a hearing was held on the preliminary injunction (the “Hearing”), at the conclusion of which I reserved decision. The parties subsequently agreed to consolidate the Hearing into a trial on the merits for the issues of liability and injunctive relief, submitted supplemental briefing, and attended another oral argument. The issue of damages has, by agreement of the parties, been reserved for a subsequent decision if necessary. As set forth in detail below, I find that through the SportsTrax product and Stats’ AOL site, defendants disseminated to NBA fans game information on a real-time basis. In so doing, they have misappropriated the essence of NBA’s most valuable property— the excitement of an NBA game in progress. Because defendants have “reap[ed] where [they] ha[ve] not sown,” International News Serv. v. Associated Press, 248 U.S. 215, 239, 39 S.Ct. 68, 72, 63 L.Ed. 211 (1918), NBA is entitled to injunctive relief. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the following shall constitute findings of fact and conclusions of law in support of this decision. TABLE OF CONTENTS FINDINGS OF FACT I. Parties and Amici . 1076 II. The Business of NBA Games: Real-Time Data. 1077 A. The Value of Real-Time Data. 1077 B. The Controlled Dissemination of Real-Time Data_ 1078 C. NBA’s Real-Time Data System: Gamestats. 1079 III. SportsTrax: “Any Game • Any Team • Any Time • Any Where”. 1080 A. The Product. 1080 B. The Marketing. 1081 C. The Negotiations. 1083 IV. Stats’ AOL Site: “[NBA Games] Updated as they happen” 1085 V. The Lawsuit. 1085 CONCLUSIONS OF LAW I. Laches Defense.1085 II. Prior Restraint Defense.1086 III. Copyright Infringement Claim.1088 A. NBA Game Is Not Protected.1088 B. Copyright In Broadcast Is Not Infringed.1093 IV. Commercial Misappropriation Claim.1094 A. Preemption by Copyright Act: NBA Games v. Broadcasts of NBA Games.. 1094 1. General Scope Requirement. 1095 2. Subject Matter Requirement.1097 B. Defendants’ Misappropriation.1098 V. Lanham Act Claims.1107 A. No Contributory Infringement.1108 B. No False Advertising.1109 C. No False Designations of Origin.1110 VI. Communication Act Claim.1112 VII. Interference With Contractual Relations Counterclaim.1114 VIII. Entitlement to Injunctive Relief...1114 CONCLUSION.,.1115 FINDINGS OF FACT Upon assessing the evidence in the record, operating and observing SportsTrax, and taking into account my observations of the demeanor and assessments of the credibility of those witnesses who testified at the Hearing, I find the following to be facts in this action. I.Parties and Amici 1. Plaintiff The National Basketball Association (“TNBA”) produces, organizes, and markets pre-season, regular season, and playoff basketball games involving its twenty-nine member teams. (Affidavit of TNBA President of Television and New Media Ventures Edwin S. Desser (“Desser Aff.”) ¶3.) 2. Plaintiff NBA Properties, Inc. (“NBA Properties”) has the exclusive worldwide rights to market and promote NBA games and, accordingly, controls and manages TNBA’s intellectual property rights. (Id. ¶ 4.) 3. Defendant Stats provides information about sports, both current and historical, to the public and to various media entities, such as the Associated Press, ESPN, Fox, Turner, NBC Sports, and a majority of Major League Baseball teams. (Affidavit of Stats President and Chief Executive Officer John Dewan (“Dewan Aff.”) ¶ 3.) It also gathers and provides the real-time NBA game data which is displayed by SportsTrax and its AOL site. 4. Defendant Motorola develops and markets, inter alia, paging devices which relay a variety of information, from telephone numbers to weather reports. (Affidavit of SportsTrax Products, Inc. President Michael Marrs (“Marrs Aff.”) ¶ 3.) It is responsible for the manufacturing and marketing of SportsTrax. 5. Amicus curiae The National Football League (“NFL”) is an unincorporated not-for-profit association comprised of thirty member clubs engaged in the business of creating, organizing, promoting, and exhibiting professional football games. (Memorandum of Law Submitted by the NFL, The Office of the Commissioner of Baseball (“MLB”) and the National Hockey League (“NHL”) as Amicus Curiae (“NFL Memo.”) at 2.) 6. Amicus curiae Office of the Commissioner of Baseball is an office serving the twenty-eight clubs that are members of either The American League of Professional Baseball Clubs or The National League of Professional Baseball Clubs, which are in the business of creating, organizing, promoting, and exhibiting professional baseball games. (Id.) 7. Amicus curiae NHL is a joint venture engaged in the business of creating, organizing, promoting, and exhibiting the professional hockey games of its twenty-six member teams. (Id. at 3.) 8. Amicus curiae The Associated Press (“AP”) is a not-for-profit mutual news cooperative whose'members are newspapers, television stations, and radio stations. (Brief Amicus Curiae of AP in Opposition to Plaintiffs’ Request for Injunctive Relief (“AP Memo.”) at 1). As the world’s largest and oldest news gathering organization, AP is in the business of gathering and distributing news, including sports news, to its members and subscribers. (Id.) 9. Amicus curiae America Online, Inc. (“AOL”) operates an online computer service providing a wide range of information for over six million subscribers worldwide. (Memorandum of Law Amicus Curiae of AOL in Support of Defendants (“AOL Memo.”) at 1.) 10. Amicus curiae The New York Times Company (“NYT”) publishes The New York Times newspaper and has been in the business of reporting and distributing news for over a century. (Memorandum of Law of Amicus Curiae NYT at 1.) II.The Business of NBA Games: Reair-Time Data A. The Value of Real-Time Data 11. The vast commercial value and appeal of NBA games is beyond dispute. 12. Much of this value and appeal is attributable to years of NBA’s promotional investments. 13. Currently, NBA’s primary promotional announcement consists of the series of thirty-second advertisements with the theme, “I Love This Game.” (Testimony of TNBA President of Television and New Media Ventures Edwin S. Desser, Transcript (“Desser, Tr.”) at 160; Exhibit (“Ex.”) 141.) NBA typically runs one or two of these advertisements in each network telecast of an NBA game and produces roughly twenty to thirty per year. (Desser, Tr. at 161.) 14. It is also beyond dispute that NBA games achieve the apex of their value while they are in progress. In fact, roughly 80% of NBA’s revenues are derived from the promotion of NBA games while they are in progress, such as from broadcast distribution licenses and admission fees to the arenas. (Id. at 11.) 15. The National Broadcasting Company (“NBC”), for example, pays NBA approximately $3 million per game for the national network television broadcast rights to NBA games. (Id. at 53-54.) 16. Turner Broadcasting (“Turner”) pays NBA approximately $1 million per game for the rights to televise nationally 115 regular season and playoff games. (Id. at 54.) 17. ESPN Radio pays NBA approximately $50,000 to $100,000 per game for the national radio distribution rights for NBA games. (Id.) 18. In addition to these national broadcast .agreements, NBA has a series of local and regional license agreements. (Id.) In the New York Metroplex, NBA has agreements with MSG Network and Sports Channel, which carry New York Knieks and New Jersey Nets games respectively. (Id.) 19. Further, NBA has a license agreement with TRZ Communications, which takes audio descriptions of NBA games and distributes them via a 1-800 number (1-800-HEAR-NBA) to listeners who are not in the vicinity of a radio or television broadcast of an NBA game. (Id. at 13, 54.) Callers are charged a fee in exchange for which they can select a game currently in progress and hear a play-by-play broadcast of the game. (Id. at 106-07.) 20. NBA fans also can pay approximately $149 per year as a subscriber to League Pass, a satellite service which allows the subscriber to view 1,000 games (virtually every televised game) over the course of a season. (Id. at 55.) B. The Controlled Dissemination of Real-Time Data 21. Although NBA relies on this public dissemination of real-time NBA game data to enhance public interest in NBA games, it must, in order to preserve the value of its proprietary interest in this information, impose limitations on its dissemination. 22. NBA’s license agreements represent one limitation. 23. Another limitation is NBA’s media credentials. These media credentials ensure that entities, despite the legitimacy of then-news gathering and dissemination functions, are not able to disseminate real-time information which is comparable to that provided by NBA’s paying licensees without compensating NBA. 24. In this manner, NBA balances the goals of informing the public about, and attracting interest in, NBA games, on the one hand, and preserving its ability to derive revenue from the sale of real-time NBA game information, on the other hand. {Id. at 99.) 25. Credentialed media entities are admitted to the arenas and are permitted to provide post-game reports and, to a more limited extent, reports of NBA games while they are in progress. {Id. at 14.) 26. According to NBA’s 1995-96 Media Pass: Television and radio stations may use excerpts of NBA games only in the manner and on the terms and conditions set forth in the NBA’s Video and Audio Highlights Licenses, receipt of which is acknowledged. Any other use requires prior specific written approval from the NBA. The use of any photograph, film, tape or drawing of the game, player interviews or other arena activities taken or made by the accredited organization or the individual for whom this credential has been issued shall be limited to news coverage of the game by the organization to which this credential is issued unless expressly authorized in writing by the NBA. Permission to film or tape NBA games may be revoked at any time by the NBA. All ownership, copyright and property rights in the NBA games, telecast thereof and in the events and activities conducted in the arena shall remain the sole property of the NBA and no such rights are conferred or intended to be conferred or created on behalf of any other person or entity by the issuance of this credential. (Ex. 324.) 27. NBA’s Media Guidelines provide further specifications for photographers, cameramen, and the electronic media, and they limit the nature of the media’s use of video highlights of NBA games. (Ex. 136.) 28. The electronic media restrictions state: No electronic media personnel shall transmit scores and/or other game information out of an NBA arena (by telephone or by any other means) more than three times during each quarter and once during each of the two quarter breaks without the prior specific written approval of the NBA; provided, however, that in the event that such game involves one or more “overtime” periods, two additional transmissions per overtime period (once during the overtime period and once during the break immediately prior to the start of such overtime period) shall be authorized without the prior written approval of the NBA; and provided, further, that no such transmission shall exceed thirty seconds in length. The limitation on transmissions contained in the preceding sentence shall not be applicable during pre-game, post-game, or half-time of the game. {Id.) 29. The video highlights restrictions provide, inter alia, that game highlights: “may be used only for news purposes in regularly scheduled news programs up to 72 hours after the completion of the game,” “may not exceed two minutes” for any one NBA game that has been completed, “may only include Highlights of the first half’ of an ongoing NBA game, and “may not incorporate announcer commentary from game telecasts.” (Id.) 30. SportsTicker, which is owned by ESPN (Desser, Tr. at 104), is one of the entities to which NBA has provided its media credentials. Based on game updates from its representatives in the arenas, SportsTicker distributes electronically the score and time remaining three times per quarter and once at the end of the quarter. It creates a data feed with this information and sells the information to its clients. (Id. at 100). 31. NBA does not control SportsTicker’s decisions as to who receives its data feeds; NBA only regulates the frequency and types of information which SportsTicker may provide. (Id. at 104.) 32. One product which uses SportsTicker’s data feed is “ESPNET To.Go,” a pager device manufactured by Motorola which distributes sports information about ongoing Major League Baseball, NFL, NBA, NHL, and Division I NCAA football and basketball games. (Id. at 41-42, 59; Exs. 73, 327.). 33. In addition to the promotional benefits provided by other entities with media credentials, SportsTicker provides NBA teams with the scores to other NBA games around the league, which are displayed for fans in each arena. (Desser, Tr. at 55.) 34. For the same reason that NBA restricts the dissemination of real-time information by media entities, NBA also places restrictions on patrons who view NBA games from the arenas. 35. The back of admission tickets states: “By your use of this ticket ... you agree that you will not transmit or aid in transmitting any description, account, picture or reproduction of the event to which this ticket invites you.” (Ex. 83.) 36. Further, NBA places signs at the entrances to the arenas and mails publications to season ticket holders which contain similar restrictions. (Desser, Tr. at 113.) C. NBA’s Real-Time Data System: Gamestats 37. Not only does NBA limit what others can do with its valuable real-time NBA game data, but it currently is developing its own system — Gamestats—for capturing and disseminating statistical information about ongoing NBA games. (Id. at 23.) 38. NBA first installed Gamestats during the 1994-1995 NBA season. (Id. at 249.) 39. Its full development, however, consists of four phases. 40. Phase I, which has been completed in most respects, is the development and implementation phase of the software used to operate Gamestats. (Id. at 35.) 41. At this time, all twenty-nine arenas and all twenty-nine teams are using Games-tats, with the assistance of NBA’s two-hundred page user’s manual (Ex. 326), as the primary system for entering and capturing the statistics of NBA games. (Desser, Tr. at 35.) NBA currently uses Gamestats to generate the official play-by-play game sheet and the half-time and post-game box scores, to provide information to broadcasters announcing the games and to allow television stations to update their on-screen graphics, and to distribute information throughout the arena in which the game is being played for use by members of the press and those in luxury suites. (Id. at 34.) 42. Phase II, which the NBA plans to have operational for the 1996-1997 basketball season, is the development of a network linking the Gamestats data from all twenty-nine arenas. (Id. at 35.) At present, Gamestats does not have the capability to provide real-time data outside of a particular arena. (Id. at 253.) 43. Phases III and IV consist of further enhancements to Gamestats to achieve its objectives of creating and collecting game statistics and interfacing these statistics with arena clocks and scoreboards, networking this information among the arenas, and making this information available for commercial use. (Ex. 144.) 44. NBA recently has been involved in discussions with various entities in order to market Gamestats. These entities include ESPN, SportsTicker, Time Warner, Intel, IT Network, and even defendants. (Desser, Tr. at 40-42.) 45. NBA expects to receive almost $1 million from license fees for the first year in which it has the capability to license real-time data from Gamestats. (Id. at 57.) 46. Although NBA presently does not have any agreements with beeper manufacturers for a product analogous to SportsTrax or ESPNET To.Go (id. at 105), NBA intends to provide a Gamestats data feed to a pager product once Gamestats has the capability to provide real-time information beyond the particular arena in which the game is being played (id. at 206-07, 253). III. SportsTrax: “Any Game • Any Team • Any Time • Any Where” 47. In January 1996, SportsTrax presented retad consumers with another means of acquiring real-time information about NBA games. A. The Product 48. At its core, it provides real-time “Basketball Action Wherever You Go.” (Ex. 8-D (“Retail Box”).) 49. More specifically, it allows the consumer to follow all NBA games, including playoff games, being played around the nation at any particular time by regularly updating its displays of the score, quarter, ball possession, time remaining, and team in the bonus while the games are in progress. (Retail Box.) 50. These updates appear on a display screen which depicts a basketball court. (Ex. 8-B (“SportsTrax Device”).) 51. SportsTrax also designates whether a team is the home or visiting team and it has audible alerts which indicate the start of a game, the end of a period, the six minute warning, the two minute warning, and all game updates. (Retail Box; Ex. 8-C (“User’s Guide”) at 14.) 52. The consumer receives these, as well as some other specialized features, for “exciting basketball action in the palm of your hand.” (Retail Box.) 53. By providing “up-to-date information on all National Basketball Association teams,” SportsTrax is the consumer’s “personal viewing window into the exciting world of Pro Basketball.” (User’s Guide at 2, 3.) 54. Its operation is analogous to that of a television, with each “channel” of SportsTrax “showing a different Basketball game” and “a channel for every game being played that day.” (Mat3.) 55. Once a particular game begins, “the start times are replaced with live updates about the progress of the games,” thus allowing the consumer to “flip the channels and view the status of any and every game being played that day.” (Id.) 56. As these advertised features make clear, SportsTrax is designed and marketed as a commercial entertainment product for NBA fans. (Testimony of SportsTrax Products, Inc. President Michael Marrs, Transcript (“Marrs, Tr.”) at 275; Ex. 251; Testimony of Stats President and Chief Executive Officer John Dewan, Transcript (“Dewan, Tr.”) at 458-59.) 57. It “is designed for those times when you cannot be at the arena, watch the game on TV, or listen to the radio and a slight delay is acceptable.” (User’s Guide at 14.) 58. Although SportsTrax has the capability to deliver real-time information about NBA games as fast as that information is sent to the device (Marrs, Tr. at 281), “status updates are usually received within two minutes of the on-court activity” (User’s Guide at 14). 59. Toward the end of competitive NBA games, however, SportsTrax often updates more frequently than every two minutes. (Marrs, Tr. at 281-282, 402-04; Dewan, Tr. at 545.) In fact, updates sometimes occur numerous times within one minute. (Ex. 285.) 60. The updates presented by SportsTrax are provided to Motorola by Stats. (Dewan, Tr. at 466.) 61. Stats, however, does not have reporters in the arenas or at the press tables; instead, it pays reporters $10 per game to watch NBA games on broadcast and cable television and to listen to radio broadcasts. (Id. at 466, 468.) 62. Accordingly, some of the information relied on by Stats’ reporters may be that which Gamestats provided to the broadcast announcers (especially for the radio broadcasts where Stats’ reporters do not view the game independently). (Id. at 473-77.) 68.Two reporters cover each game. (Id. at 473.) They watch or listen to the broadcasts and type information, such as successful shots, missed shots, fouls, and clock updates, into computers which calculate various statistics and relay them for eventual transmission to SportsTrax devices. (Id. at 473-74.) 64. Two or three night editors monitor the information relayed by the reporters for a particular night’s games to address any discrepancies between the two reporters covering each game. (Id. at 485.) Stats’ software also has built-in corrective features. (Id. at 479.) B. The Marketing 65. The marketing of SportsTrax is the responsibility of Motorola. 66. While marketing SportsTrax at the wholesale level, Motorola occasionally used the acronym “NBA” to describe SportsTrax, such as referring to it as the “NBA Sport-sTrax.” (Marrs, Tr. at 283-84; Exs. 228, 250,251, 361.) 67. Motorola’s retail advertising also refers to “NBA games” (Ex. 63 (“Point-of-Sale Flyer”)), “National Basketball Association teams,” “Pro games,” “Pro Basketball,” “Pro Basketball Teams,” (User’s Guide at 2, 3, 9) and “29 Pro Basketball Teams” (Retail Box). 68. Similarly, it states the team names and uses terms such as “Eastern Conference” and “Western Conference.” (User’s Guide at 9.) 69. Motorola uses these terms descriptively to explain in an intelligible fashion the type of information conveyed by SportsTrax and its operation. Motorola attempts to make clear, for example, that SportsTrax does not display NCAA (or collegiate level) basketball updates. (Marrs, Tr. at 286, 325-26.) 70. Motorola also made statements relating to the origin of the information conveyed by SportsTrax. 71. A January 1996 press release issued by Motorola stated that SportsTrax provides “updated game information direct from each arena” which “originated from the press table in each arena.” (Ex. 228; Marrs, Tr. at 297-98.) 72. Marrs approved this press release on behalf of Motorola based on his mistaken belief, from an August 1994 conversation with Stats, that Stats actually gathered its information in this manner. (Marrs, Tr. at 298-301.) 73. The retail box and display stand also advertise that SportsTrax provides updates “from the arena.” (Retail Box; Ex. 252 (“Retail Display Stand”).) 74. Finally, Motorola made statements about the contemporaneous nature of information conveyed by SportsTrax. It stated in the January 1996 press release that Sport-sTrax provides “minute-by-minute updates” of NBA games. (Ex. 228.) 75. The record is devoid, however, of evidence that Motorola ever advertised that NBA manufactured, licensed, sponsored, or approved of SportsTrax. 76. The only words on the face of the SportsTrax device are “SportsTrax” and “Motorola.” 77. The retail box states in conspicuous letters “Motorola SportsTrax” on every side which has text. 78. Similarly, the user’s guide, other than a depiction of the product, has four words written on the cover: “Motorola,” “Sport-sTrax,” “User’s,” and “Guide.” 79. Nevertheless, Brookstone, a retailer of SportsTrax, despite conceding that Motorola never stated that SportsTrax was officially licensed (Deposition of Brookstone Employee Jenny J. Van Treese (‘Van Treese Dep.”) at 5), accidentally stated in one of its retail advertisements that SportsTrax was “officially licensed by the National Basketball Association.” (Marrs, Tr. at 287-288.) 80. The drafter of the advertisement, Jenny J. Van Treese (‘Van Treese”), without verifying the accuracy of this advertisement, placed a question mark by the “officially licensed” clause in her draft, and incorrectly assumed that the information would be verified by a proofreader and by Brookstone’s SportsTrax buyer. (Van Treese Dep. at 33-34, 44-45.) 81. This was part of Van Treese’s practice as a writer to “take a little license with what is said” in order to “make it a little more interesting to the reader.” {Id. at 27.) 82. Motorola first learned of the error in late January 1996. (Marrs, Tr. at 290.) 83. Within approximately ten days thereafter, Motorola wrote a letter to Brookstone to remedy the erroneous advertisement. {Id. at 290-91.) 84. Motorola subsequently placed numerous telephone calls to Brookstone to ensure Brookstone’s correction of its erroneous advertisement. {Id. at 291.) 85. The reference to NBA’s license was corrected in Brookstone’s next catalogue {id. at 292), and Brookstone apologized for the error (Ex. 281). 86. When NBA was made aware of Brookstone’s erroneous advertisement, NBA called Brookstone to order a unit, but, prior to this lawsuit, never complained to Brook-stone about its false statement. (Desser, Tr. at 78-80.) 87. Hammacher Schlemmer, another retailer of SportsTrax, ran an advertisement primarily focused on the baseball Sport-sTrax. It referred to the baseball Sport-sTrax as a “palm-sized electronic marvel that lets you see the play-by-play action of every Major League baseball game.” (Ex. 331.) It also noted, correctly according to Motorola, that the baseball SportsTrax was “officially licensed by Major League Baseball.” {Id.) Below this portion of the advertisement, Hammacher Schlemmer included a brief description of the basketball Sport-sTrax, which began: “As above.” {Id.) 88. Despite these advertisements and references to terms such as “NBA,” “Eastern Conference,” and “from the arena,” NBA has not received any communications from consumers expressing their confusion as to NBA’s sponsorship or approval of Sport-sTrax. (Desser, Tr. at 107-08.) 89. Similarly, NBA has not conducted any market research or consumer surveys to assess such confusion. {Id. at 108.) 90. Motorola’s marketing of SportsTrax also involved negotiating promotion and sales agreements with four NBA teams — the New Jersey Nets (the “Nets”), the Los An-geles Lakers (the “Lakers”), the Los Angeles Clippers (the “Clippers”), and the Orlando Magic (the “Magic”). (Deposition of Nets Employee James Lampariello (“Lampariello Dep.”) at 44; Deposition of California Sports Inc. Employee Stephen Chase (“Chase Dep.”) at 42; Deposition of Clippers Corporate Marketing Director Adam David Smith (“Smith Dep.”) at 27; Deposition of Orlando Magic Fanattie Employee James Winzig (“Winzig Dep.”) at 27-28; Exs. 14,16.) 91. Prior to the commencement of this lawsuit and despite the existence of established procedures for teams to notify NBA about infringing activities (Ex. 13-A (“NBA Operations Manual 1996-1996”) at 236), NBA did not receive any communications from these NBA teams regarding the propriety of their agreements with Motorola. (Desser, Tr. at 88, 111.) 92. Eventually, however, all four teams did have discussions with NBA representatives and ceased doing business with Motorola in relation to SportsTrax. (Lampariello Dep. at 71, 75; Chase Dep. at 87-88; Smith Dep.-at 84-86; Winzig Dep. at 26-27, 46-50.) 93. The Nets concluded that SportsTrax was a “renegade product” (Lampariello Dep. at 42) which required NBA approval but lacked the relevant indications, such as an NBA logo or the Nets logo, of this approval. {Id. at 38,40, 64, 66.) 94. The Lakers, after learning of NBA’s conflict with Motorola (Chase Dep. at 83-84), recognized the erroneous nature of their assumption that NBA must have approved of SportsTrax in order for it to convey real-time NBA game information {id. at 70-71, 101.) 95. Similarly, the Clippers discovered that they erroneously assumed, because the Nets and Lakers already had similar agreements with Motorola, that NBA acquiesced in such agreements. (Smith Dep. at 38.) The Clippers also based their erroneous assumption of NBA acquiescence on their belief, that Stats, which provides the information to SportsTrax, also provided similar statistical information to NBA, and on the use by SportsTrax of “LAL” and “LAC” (to refer to the Los Angeles Lakers and Los Angeles Clippers), “Eastern Conference,” and “Western Conference.” {Id. at 95-96, 98.) 96. The Magic, unlike the other teams, had decided that NBA approval was not required because SportsTrax did not use Magic logos or NBA logos (Winzig Dep. at 37, 51). C. The Negotiations 97. SportsTrax is the outgrowth of lengthy negotiations among NBA, Motorola, and Stats. 98. In September 1994, at the initiation of NBA, Motorola and NBA first met to discuss a potential business relationship involving the dissemination of real-time NBA game information. (Desser, Tr. at 69-71; Marrs, Tr. at 303.) 99. At this time, Motorola already had an agreement with Stats for the SportsTrax Major League Baseball paging device. (Marrs, Tr. 307.) 100. Motorola firmly desired to have the basketball version of SportsTrax selling at the retail level by the outset of the 1995-1996 NBA season. (Id. at 276, 316.) 101. Motorola’s goal was to preempt any competitors in this potentially prosperous line of products (id. at 276-77, 319), to take advantage of the relatively recent favorable press coverage regarding its baseball Sport-sTrax product (id. at 306, 315-16), and to reduce its reliance on the baseball Sport-sTrax, especially in light of the 1994 baseball player’s strike (id. at 319-20). 102. Therefore, Motorola was unwilling to wait beyond the fall of 1995 for NBA’s Gamestats to be in a position to provide the necessary information for a real-time NBA product. (Id. at 315-16, 318-19.) 103. Motorola soon realized, however, that its negotiations with NBA were not leading toward a fall 1995 retail launch date for SportsTrax. 104. Consequently, by March 1995, Motorola had decided to develop its real-time NBA product — SportsTrax—with or without NBA’s involvement. (Id. at 313-14.) 105. Motorola never informed NBA of this decision. (Id. at 320.) 106. In July 1995, Motorola and NBA attended the National Sporting Goods Convention (a trade show) in Chicago. (Id. at 278-79, 345.) 107. Among the many promotional items at Motorola’s booth were an order form with a pre-printed reference to the baseball and basketball SportsTrax (id. at 349, 352) and a fiberglass replica of the basketball Sport-sTrax (id. at 358). 108. Nevertheless, no press release regarding the basketball SportsTrax accompanied this July 1995 trade launch of Sport-sTrax (id. at 345, 350-51), the basketball SportsTrax was not operational at that time (id. at 345-46), and Motorola’s booth was one of the smallest booths at this show involving thousands of booths (id. at 357-58). 109. NBA maintained parallel discussions with Stats during this time frame. (Id. at 303-304; Ex. 229.) 110. In May 1994, Desser attended the National Cable Television Association Convention on behalf of NBA. (Desser, Tr. at 174.) Stats maintained a booth at this convention which displayed a videotape on a continuing basis that demonstrated Stats’ services, such as updating the scores of ongoing games, for a variety of sports. (Id. at 174-178; Dewan, Tr. at 547.) One of these sports was professional basketball. (Marrs, Tr. at 174-178.) The videotape was playing so loudly that even Stats describes it as annoying. (Dewan, Tr. at 547, 572.) Despite this annoyance, NBA representatives visited Stats’ booth. (Id. at 551; Desser, Tr. at 174.) 111. It was around the time of this convention that NBA and Stats first discussed Stats’ becoming an NBA data wholesaler. (Dewan, Tr. at 446, 550; Ex. 242.) 112. Stats, which competes with companies such as SportsTicker (Dewan, Tr. at 466), was “looking to be the exclusive provider of information — of NBA-developed information” (id. at 451). 113. NBA’s ultimate plan was to rely on Gamestats to provide raw information to Stats, which would then customize the information to be fed for use by a real-time product made by Motorola but associated with NBA. (Desser, Tr. at 256; Dewan, Tr. at 522.) 114. NBA’s negotiations with Stats continued through January 1996. (Dewan, Tr. at 503; Ex. 213.) 115. Defendants also negotiated between themselves to develop and market Sport-sTrax. 116. Defendants recognized that the essence of their product was the provision of timely NBA information. (Marrs, Tr. at 365, 422; Dewan, Tr. at 443, 446; Ex. 237.) 117. They also realized, perhaps due to this central feature of SportsTrax, that they may be required to go forward with NBA’s involvement, such as by paying NBA a royalty (Marrs, Tr. at 368-70; Ex. 244 ¶ 3), or else face claims by NBA. In fact, Motorola required an assurance from Stats that Motorola would be protected from potential NBA claims. (Marrs, Tr. at 359-60; Ex. 269.) 118. Stats first provided Motorola with a bid for the provision of real-time NBA information for SportsTrax in September 1995. (Marrs, Tr. at 345-46.) 119. In October 1995, Stats provided Motorola with a draft contract for provision of real-time data for SportsTrax. (Dewan, Tr. at 500.) 120. In January 1996, SportsTrax began selling at the retail level. TV. Stats’ AOL Site: “[NBA Games] Updated as they happen” 121. Also in January 1996, Stats enhanced its AOL site so that “users who access the site see point-by-point changes in scores of NBA games” and other real-time updates. (Dewan Aff. ¶ 21.) 122. To achieve this real-time dissemination of NBA game information, Stats relies on the same data feed which it provides to SportsTrax. (Id. ¶¶ 13,18.) 123. Stats’ AOL site updates scores and the time remaining “every 15 seconds to a minute.” (Deposition of AOL General Manager of Sports Randall J. Dean (“Dean Dep.”) at 90.) 124. Further, it updates its box scores, which include player and team statistics such as field goals, free throws, rebounds, three-point shots, total points, and minutes played, “every minute.” (Ex. 222; see Ex. 310; Dean Dep. at 138-39; Dewan Aff. ¶ 21.) 125. As Stats’ President and Chief Executive Officer John Dewan stated, “Stats updates the scores on AOL as quickly as it possibly can and it updates the statistics each minute.” (Deposition of John Dewan (“De-wan Dep.”) at 244 — 45; see Dewan, Tr. at 510.) 126. Thus, Stats’ AOL site provides more comprehensive and more frequently updated real-time NBA game information than Sport-sTrax. 127. Finally, Stats, not AOL, controls “all content and services” available on its AOL site. (Ex. 350 ¶ 2.1.3.) AOL “has no more editorial control over such Content than does a public library, bookstore, or newsstand.” (Id., Ex. A ¶ 2.7.) V. The Lawsuit 128. By the end of January 1996, NBA presented Motorola a letter demanding that it “cease and desist from further advertisement, distribution and sale of the NBA SportsTrax Device.” (Ex. 85.) 129. In a letter dated February 2, 1996, NBA presented AOL with an analogous cease and desist letter. (Reply Affidavit of TNBA President of Television and New Media Ventures Edwin S. Desser (“Desser Rep. Aff.”) ¶ 6; Reply Affidavit of NBA Attorney Roger Zissu (“Zissu Aff.”), Ex. 2.) 130. On March 5, 1996, NBA filed this lawsuit. CONCLUSIONS OF LAW 131. NBA claims that defendants’ conduct in connection with SportsTrax and Stats’ AOL site constitutes infringement under the Copyright Act of 1976, 17 U.S.C. § 501; commercial misappropriation under New York common law; false advertising and false designations of origin under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); and a violation of the Communications Act of 1934, 47 U.S.C. § 605. 132. Defendants, in addition to their claim-specific defenses, allege two global defenses to NBA’s assertions which I will address at the outset. I. Laches Defense 133. First, defendants assert that the doctrine of laches bars NBA’s injunctive and monetary recovery because of NBA’s delay in bringing the instant action. I find this affirmative defense to be without merit. 134. “Laches is an equitable defense which bars injunctive relief where a plaintiff unreasonably delays in commencing an action.” Tri-Star Pictures, Inc. v. Leisure Time Prods., 17 F.3d 38, 44 (2d Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 484, 130 L.Ed.2d 396 (1994). 135. “It is often said that ‘mere delay' will not, by itself, bar a plaintiffs suit, but that there must be some element of estoppel, such as reliance by the defendant.” Saratoga Vichy Spring Co., Inc. v. Lehman, 625 F.2d 1037, 1040 (2d Cir.1980). 136. Accordingly, to succeed under a laches defense, a defendant must prove: (1) the plaintiff had knowledge of the conduct about which it now complains; (2) the plaintiff inexcusably delayed in taking the instant legal action; and (3) the defendant will be prejudiced by permitting the plaintiff to assert its rights in the instant action. Id.; Tri-Star Pictures, 17 F.3d at 44. 137. This determination “necessarily requires that the resolution be based on the circumstances peculiar to each case,” and it is one which “is entirely within the discretion of the trial court.” Tri-Star Pictures, 17 F.3d at 44. 138. Assuming that the other requirements of a laches defense are satisfied, I find that NBA has not inexcusably delayed in filing and prosecuting this action. 139. Although the record does not reveal precisely when NBA and Motorola stopped negotiating, it does reveal that their negotiations continued at least until early 1995 and that Motorola never communicated to NBA its decision to proceed with SportsTrax with or without NBA’s involvement. Further, NBA was involved in negotiations with Stats until January 1996; SportsTrax did not begin selling in the retail market until January 1996; Stats made the real-time enhancements to its AOL site in January 1996; NBA mailed Motorola a cease and desist letter in January 1996 and mailed AOL such a letter on February 2, 1996; and NBA filed this action, requesting expedited relief, on March 5,1996. 140.Accordingly, I exercise my discretion to reject defendants’ laches defense. II. Prior Restraint Defense 141. Second, defendants make a sweeping First Amendment argument to avoid the injunctive relief sought by NBA Defendants contend that the First Amendment to the United States Constitution prohibits this Court from enjoining their dissemination of real-time information about NBA games because such an injunction would constitute an unconstitutional prior restraint. I disagree. 142. “There is no doubt that entertainment, as well as news, enjoys First Amendment protection. It is also true that entertainment can itself be important news.” Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578, 97 S.Ct. 2849, 2859, 53 L.Ed.2d 965 (1977). 143. Nevertheless, as the Supreme Court recently held in rejecting a prior restraint argument by antiabortion protestors: We also decline to adopt the prior restraint analysis urged by petitioners. Pri- or restraints do often take the form of injunctions. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (refusing to enjoin publications of the “Pentagon Papers”); Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980) (per curiam) (holding that Texas public nuisance statute which authorized state judges, on the basis of a showing that a theater had exhibited obscene films in the past, to enjoin its future exhibition of films not yet found to be obscene was unconstitutional as authorizing an invalid prior restraint.) Not all injunctions which may incidentally affect expression, however, are “prior restraints” in the sense that that term was used in New York Times Co., supra, or Vance, supra. Here petitioners are not prevented from expressing their message in any one of several different ways; they are simply prohibited from expressing it within the 36-foot buffer zone. Moreover, the injunction was issued not because of the content of petitioners’ expression, as was the case in New York Times Co. and Vance, but because of their prior unlawful conduct. Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, - n. 2, 114 S.Ct. 2516, 2524 n. 2, 129 L.Ed.2d 593 (1994). 144. The Court in Madsen, in other words, highlighted the distinction between injunctions which constitute merely literal prior restraints (in that they have incidental prospective effects on protected speech or conduct) and those which constitute unconstitutional prior restraints. 145. This distinction, as the Court’s discussion indicates, requires two assessments: if such an injunction (1) has a eon-tent-neutral justification, and (2) does not represent an absolute bar on a particular expression, then it is not an unconstitutional prior restraint. Pro-Choice Network v. Schenck, 67 F.3d 359, 368 n. 5 (2d Cir.1994) (interpreting Madsen), vacated in part on other grounds, 67 F.3d 377 (2d Cir.1995) (en banc), cert. granted, — U.S. -, 116 S.Ct. 1260, 134 L.Ed.2d 209 (1996). 146.As for content-neutrality, courts repeatedly have distinguished between injunctions which serve to suppress particular ideas and those which provide a remedy for violations of content-neutral laws. See, e.g., Organization for a Better Austin v. Keefe, 402 U.S. 415, 418-19, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971) (finding an unconstitutional prior restraint because, as in Near v. Minnesota ex rel Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), the seminal prior restraint case, “the injunction operates, not to redress alleged private wrongs, but to suppress, on the basis of previous publications, distributions of literature ‘of any kind’ in a city of 18,000”); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 206 (2d Cir.1979) (recognizing, to reject a prior restraint argument, that “[t]his is not a case of government censorship, but a private plaintiffs attempt to protect its property rights,” and that “[t]he prohibition of the Lanham Act is content neutral ... and therefore does not arouse the fears that trigger the application of constitutional ‘prior restraint’ principles”). 147. In this action, as will be discussed below, defendants have commercially misappropriated NBA’s proprietary rights in violation of New York’s content-neutral common law. It is this remedial purpose, and only this purpose, which justifies the injunctive relief provided herein. 148. The injunction, therefore, is content-neutral and the fact that defendants’ unlawful conduct happens to confine itself to a particular topic — NBA games — does not alter this reality. 149. Further, defendants are not totally thwarted in their efforts to profit on the presentation of information about NBA games. I hold only that they cannot do so in the unlawful manner which they presently have chosen — providing their continuous and contemporaneous updates of ongoing NBA games without compensating NBA for its skill, labor, and expenditures. See Zacchini 433 U.S. at 578, 97 S.Ct. at 2859 (“Petitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it.”). 150. Accordingly, defendants’ prior restraint argument is unavailing. Cf. San Francisco Arts & Athletics, Inc. v. Olympic Comm., 483 U.S. 522, 541, 107 S.Ct. 2971, 2983, 97 L.Ed.2d 427 (1987) (“The mere fact that the [plaintiff] claims an expressive, as opposed to a purely commercial, purpose does not give it a First Amendment right to ‘appropriate] to itself the harvest of those who have sown.’”) (quoting International News Serv. v. Associated Press, 248 U.S. 215, 239-40, 39 S.Ct. 68, 72, 63 L.Ed. 211 (1918)); Zacchini, 433 U.S. at 575, 97 S.Ct. at 2857 (holding that the First Amendment does not “privilege respondent [broadcasting company] ... to film and broadcast a prize fight ... or a baseball game ... where the promoters or the participants had other plans for publicizing the event”) (citing, inter alia, Pittsburgh Athletic Co. v. KQV Broadcasting Co., 24 F.Supp. 490 (W.D.Pa.1938)). III. Copyright Infringement Claim 151. As for NBA’s claims, it alleges initially that defendants infringed its copyrights in both the NBA games and the broadcasts of the games in violation of the Copyright Act of 1976 (the “Copyright Act”), 17 U.S.C. § 501. 152. “To establish copyright infringement, ‘two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”’ Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996) (quoting Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991)). 153. I hold that NBA has failed to satisfy the first element for its allegation of infringement of its copyright in the NBA games and has failed to satisfy the second element for its allegation of infringement of its copyright in the broadcasts of NBA games. A. NBA Game Is Not Protected 154. With respect to the NBA games, NBA is not seeking to protect a written book of NBA rules or coaches’ plays or a tangible recording of an NBA game. Instead, it seeks to protect the NBA games themselves — the culmination of interaction of these NBA rules and coaches’ plays, the referees, the players, and perhaps even the announcers, members of the press, vendors, patrons, security guards, ticket takers, and the like who are present at the arena during an NBA game and whose interaction comprises an NBA game. 155. I hold, however, that NBA games do not constitute “original works of authorship” and thus do not fall within the subject matter of copyright protection under 17 U.S.C. §§ 102,103. 156. “The source of Congress’ power to enact copyright laws is Article I, § 8, cl. 8, of the Constitution_” Feist, 499 U.S. at 346, 111 S.Ct. at 1288. 157. According to this provision, “Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors ... the exclusive Right to their respective Writings.” U.S. Const, art. I, § 8, cl. 8. 158. As indicated by the language of the Copyright Clause, “[t]he primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’” Feist, 499 U.S. at 349, 111 S.Ct. at 1290 (quoting U.S. Const, art. I, § 8, cl. 8). 159. Reward to the author is regarded as a secondary consideration necessary only because it “afford[s] greater encouragement to the production of works of benefit to the public.” Zacchini, 433 U.S. at 577, 97 S.Ct. at 2858; accord Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546,105 S.Ct. 2218, 2223, 85 L.Ed.2d 588 (1985) (“‘The monopoly created by copyright thus rewards the individual author in order to benefit the public.’ ”) (citation omitted). 160. Thus, [t]he economic philosophy behind the clause empowering Congress to grant ... copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors ... in “Science and useful Arts.” Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered. Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 reh’g denied, 347 U.S. 949, 74 S.Ct. 637, 98 L.Ed. 1096 (1954). 161. “To this end, copyright assures authors the right to their original work, but encourages others to build freely upon their ideas and information conveyed by a work.” Feist, 499 U.S. at 349-50, 111 S.Ct. at 1290; see Harper & Row, 471 U.S. at 545-46, 105 S.Ct. at 2223 (discussing the need to “assure contributors to the store of knowledge a fair return for their labors,” on the one hand, and the need to avoid “imped[ing] the harvest of knowledge” available for public use, on the other hand). 162. The United States Court of Appeals for the Eleventh Circuit has discussed these bedrock policies in terms of the proprietary and regulatory aspects of copyright protection. Cable News Network, Inc. v. Video Monitoring Servs. of Am., Inc., 940 F.2d 1471, 1478 (11th Cir.), vacated on other grounds, 949 F.2d 378 (11th Cir.1991), appeal dismissed, 959 F.2d 188 (11th Cir.1992). “Copyright’s basis as a proprietary concept is that it enables one to protect his or her own creations. Its regulatory basis is that when these creations constitute the expression of ideas presented to the public, they become part of the stream of information whose unimpeded flow is critical to a free society.” Id. (quoting Patterson, Free Speech, Copyright, and Fair Use, 40 Vand.L.Rev. 1, 5 (1987)). 163. The primary method by which copyright law seeks to promote these bedrock policies is through a principle known as the “idea/expression or facVexpression dichotomy.” Feist, 499 U.S. at 350, 111 S.Ct. at 1290. 164. According to this principle, “[t]he most fundamental axiom of copyright law is that ‘[n]o author may copyright his ideas or the facts he narrates.’ ” Id. at 344-45, 111 S.Ct. at 1287 (quoting Harper & Row, 471 U.S. at 556, 105 S.Ct. at 2228). 165. Instead, the “copyright is limited to those aspects of the work — termed ‘expression’ — that display the stamp of the author’s originality.” Harper & Row, 471 U.S. at 547, 105 S.Ct. at 2224; see Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1074 (2d Cir.1992) (“There is a world of difference between the creative expression of an idea or a fact and its revelation.”). 166.The requirement of an original expression “is the very ‘premise of copyright law.’ ” Feist, 499 U.S. at 347, 111 S.Ct. at 1288 (citation omitted). Not only is it required by the Copyright Act, but it is “a constitutional requirement.” Id. at 346, 111 S.Ct. at 1288. 167. Originality, in turn, is comprised of two components: (1) the work must be created independently, as opposed to being copied from another work; and (2) the work must possess some minimal degree of creativity. Id. at 345, 111 S.Ct. at 1287. 168. Originality, however, does not require novelty. [A] work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable. Id. at 345-46, 111 S.Ct. at 1287-88. 169. Facts are not protectible because they lack originality. “The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.” Id. at 347, 111 S.Ct. at 1288. Census takers, for example, do not “create” the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them.... Census data therefore do not trigger copyright because these data are not “original” in the constitutional sense_ The same is true of all facts— scientific, historical, biographical, and news of the day. “They may not be copyrighted and are part of the public domain available to every person.” Id. at 347-48, 111 S.Ct. at 1288-89. (citations omitted). 170. Ideas, although they may possess some degree of originality, are not proteetible because they are not expressions of originality. See Feist, 499 U.S. at 345, 111 S.Ct. at 1287 (“ ‘[N]o author may copyright his ideas_’ ”) (citation omitted). This distinction between an idea and an egression of an idea is necessary to further the primary goal underlying copyright protection: “to increase and not to impede the harvest of knowledge” available to the public. Harper & Row, 471 U.S. at 545, 105 S.Ct. at 2223. 171. Section 102(b) of the Copyright Act embodies the idea/expression or fact/expression dichotomy. See Feist, 499 U.S. at 356, 111 S.Ct. at 1293 (“[Section] 102(b) is universally understood to prohibit any copyright in facts.”); Warner Bros. Inc. v. American Broadcasting Cos., Inc., 720 F.2d 231, 240 (2d Cir.1983) (“The idea-expression dichotomy originated in the ease law and is now codified in the statute, 17 U.S.C. § 102(b)....”). 172. It provides: “In no ease does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). 173. Application of the idea/expression or fact/expression dichotomy to a particular situation is more of an art than a science. Nevertheless, as the Court of Appeals has recognized, [t]he idea/expression dichotomy, al- • though an imprecise tool, has not been abandoned because we have as yet discovered no better way to reconcile the two competing societal interests that provide the rationale for the granting of and the restrictions on copyright protection: “rewarding an individual’s ingenuity and effort while at the same time permitting the nation to benefit from further improvements or progress resulting from others’ use of the same subject matter.” Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 912 (2d Cir.1980) (quoting Reyher v. Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976)); see Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 696 (2d Cir.1992) (referring to this balancing of interests as “a delicate equilibrium”). 174. In furtherance of these ends, Congress has specified that copyright protection extends only to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). 175. Although “[t]he printing of a book [is] the traditional focus of copyright protection,” Cable News Network, 940 F.2d at 1478; accord Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 430, 104 S.Ct. 774, 782-83, 78 L.Ed.2d 574 (“Indeed, it was the invention of a new form of copying equipment — the printing press — that gave rise to the original need for copyright protection.”), reh’g denied, 465 U.S. 1112, 104 S.Ct. 1619, 80 L.Ed.2d 148 (1984), the Copyright Act reflects the history of “gradual expansion in the types of works accorded protection,” H.Rep. No. 94-1476, 94th Cong., 2d Sess. (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5664 [hereinafter “H.Rep. No. 94-1476, U.S.C.C.A.N. at-” or “House Report No. 94-1476”]. 176. It states that “[w]orks of authorship include the following categories: (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; and (8) architectural works.” 17 U.S.C. § 102(a). 177. Noticeably absent from this illustrative list of works of authorship, however, is a category for sports events or other analogous organized events. 178. Nevertheless, NBA relies on Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805 F.2d 663 (7th Cir.1986), cert. denied, 480 U.S. 941, 107 S.Ct. 1593, 94 L.Ed.2d 782 (1987), to argue, in essence, that NBA games — as opposed to broadcasts or other audiovisual recordings of the games— constitute a ninth category of protectible works of authorship. 179. In that case, the United States Court of Appeals for the Seventh Circuit addressed the issue of “whether major league baseball clubs own exclusive rights to the televised performances of major league baseball players during major league baseball games.” Id. at 665. 180. The baseball clubs sought a declaratory judgment that the telecasts of the games constituted copyrighted works made for hire in which the baseball players had no rights whatsoever. Id. at 667. 181. “The Players argue[d] that the district court erred in holding that a baseball player’s live performance, as embodied in a copyrighted telecast of the game, constitutes a work made for hire so as to extinguish the player’s right of publicity in his performance.” Id. 182. The Court, after applying the work-for-hire doctrine in 17 U.S.C. § 201(b), held that the baseball clubs owned the copyright in telecasts of major league baseball games. Id. at 673. 183. In this context, the Court included a footnote upon which NBA now relies to argue that the NBA games are protectible. In footnote 7, the Court stated: The Players argue that their performances are not copyrightable works because they lack sufficient artistic merit. We disagree. Only a modicum of creativity is required for a work to be copyrightable.... Judged by the above standard, the Players’ performances possess the modest creativity required for copyright-ability_ Courts thus should not gainsay the copyrightability of a work possessing great commercial value simply because the work’s aesthetic or educational value is not readily apparent to a person trained in the law. That the Players’ performances possess great commercial value indicates that the works embody the modicum of creativity required for copyrightability. Moreover, even if the Players’ performances were not sufficiently creative, the Players agree that the cameramen and director contribute creative labor to the telecasts. The work that is the subject of copyright is not merely the Players’ performances, but rather the telecast of the Players’ performances. The creative contribution of the cameramen and director alone suffices for the telecasts to be copyrightable. Id. at 669 n. 7. 184. I am not persuaded by NBA’s reliance on Baltimore Orioles. 185. The focus of Baltimore Orioles was on the work-for-hire doctrine in 17 U.S.C. § 201(b), not on the issue of whether a sports event, as opposed to its broadcast, is protec-tible. 186. Further, to the extent that the Court actually addressed this issue, it cites no authority holding that athletic or other organized events fall within the subject matter of copyright protection under 17 U.S.C. §§ 102, 103. 187. In fact, Nimmer on Copyright, the oft-cited treatise which the Supreme Court recently characterized as the work of a “[Heading scholar) ],” Feist, 499 U.S. at 347, 111 S.Ct. at 1288, specifically and resoundingly rejects the analysis and conclusion of the Court in Baltimore Orioles regarding the proteetibility of an athletic event. 1 M. Nim-mer & D. Nimmer, Nimmer on Copyright § 2.09[F] (1996) [hereinafter Nimmer ]. 188. Nimmer points out, inter alia, the problematic consequences of according copyright protection to an athletic event, as opposed to its telecast. 189. For example, it is unclear who in addition to NBA would be considered a copyright owner and, therefore, whose consent a party would have to obtain prior to using copyrightable portions of the game. Id. § 2.09[F], at 2-169. One might be required to seek the consent of referees, coaches, and all other participants whose creative energies contributed to the NBA game. See Eastern Microwave, Inc. v. Doubleday Sports, Inc., 691 F.2d 125, 128 (2d Cir.1982) (discussing the unworkability of requiring a party “to obtain the consent of or negotiate with numerous copyright owners”), cert. denied, 459 U.S. 1226, 103 S.Ct. 1232, 75 L.Ed.2d 467 (1983); Booth v. Colgate-Palmolive Co., 362 F.Supp. 343, 347 (S.D.N.Y.1973) (“[T]he recognition of a performer’s right in a copyrighted work would impose undue restraints on the potential market of the copyright proprietor since a prospective licensee would have to gain permission