The roof as a copyright infringement tool

by Matthew Gast

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If you've ever seen the Cubs on TV, you must have noticed people watching the games from rooftops across the street. It's one of those traditions that helps to define everybody's favorite perennial losing team from the North Side, like the way the bleachers sell out, or tossing back opposition home run balls. (As the song A Dying Cubs Fan's Last Request puts it, "...the last time the Cubs won a National League pennant/Was the year we dropped the bomb on Japan.") Watching Cubs baseball from nearby apartments is just part of who the Cubs are. In the movie V.I. Warshawsky, the title character, a private detective from Chicago and big Cubs fan, lives in an apartment overlooking Wrigley Field.

Somewhere along the way, though, some enterprising people realized that the rooftops had a good view, and started charging admission. The first time I remember hearing about admission charges was in the 1989 National League Championship Series against the Giants. Wrigley Field was sold out, so it was only natural that access to a nearby rooftop on Waveland (left field) or Sheffield (right field) was worth some money.

Well, apparently, it's become more routine to charge for letting people hang out on the roof since then, so the Cubs have literally made a federal case out. The team is suing the operators of the rooftop ticket businesses for copyright infringement. The game, you see, is copyrighted, so you are only allowed to watch if you pay for a license. (Who realized that a sports ticket was such a complicated legal agreement?) The Cubs CEO said it was "unfair for the operators to make millions of dollars a year without giving something back to the team."

His argument only makes sense if there are seats available to see the game inside the stadium. Wrigley Field is a small ballpark, and the Cubs are able to pack loyal fans in. Last season, the average crowd at Wrigley was 89% of capacity, which is fourth in major league baseball behind San Francisco, Boston, and Seattle. (Source:
) In the National League, attendance figures include only people who show up and walk through the turnstiles, so it's quite possible that Wrigley is regularly sold out. If there are no tickets for sale, how does it hurt the business?
(Ticket revenue is generally a minor component of overall team revenue, especially in a large TV market like Chicago.)

The lawsuit also seems motivated by a desire to find a legal solution to the "problem" of the quality view the rooftops enjoy. Before Opening Day 2002, the Cubs erected a "security screen" that coincidentally looked like an attempt to block the view from across the street. (See a
photo album
here, which includes a view of the
wind screens
.) Mark McGuire, a Cubs executive, said that the screen was an essential security measure after September 11, 2001. Tying the view-blocking wind screen to 9/11 is so transparent and tasteless that words fail me.

Baseball is more linked with the past than other professional sports, and depends on its rich tradition to draw in new fans. (I hate

, too, but that's another story entirely.) Before the Cubs do more damage to the foundation of the sport, the management needs to take a step back and study the origin of the term "knothole." Back in the mythical past inhabited by the baseball legends, it was acceptable for children to watch games through holes in the fence, even though they didn't purchase a "license" to do so. The Giants' new baseball stadium even
includes a similar feature designed in from day 1

If the rooftop fans were not being charged admission, this would be a clear decision in favor of the fans. It is an ambiguous decision with a business involved because the knothole argument doesn't quite apply, and a number of the rooftop businesses do charge a significant amount of money. Comments made by Cubs management in the case indicate that the problem they have is that other businesses are making money off their product without giving the team a cut. While I appreciate the desire of copyright owners to protect their rights, the entertainment industry has become so aggressive in defending rights that it is hard to be sympathetic when they claim "injury." It appears that the primary "injury" suffered by the Cubs is that the neighborhood does not want Wrigley Field to be expanded, and the Cubs are not getting their way, so they're taking it out on the rooftop owners they have tolerated for many years.

What exactly does a baseball team owe the community, and does the community have a right to anything in return?


2002-12-22 16:44:47
I can't imagine how anyone would construe this as a matter of copyright. There are no recordings involved.
2002-12-23 07:46:52
Pay Per View
I get the impression that if the roof owners didn't charge there wouldn't ncessarily be an issue (or alternatively if they donated all the "takings" direct to the stadium .. same thing).
2002-12-23 08:12:51
Covered Stadia
How common are covered stadia in baseball? I bet they become more common if the rooftop entrpreneurs win the case.
2002-12-23 09:51:51
Pay Per View
> if the roof owners didn't charge there wouldn't
> necessarily be an issue

Possibly not, although one story I read on the matter suggested that the rooftop owners were willing to settle the matter, but the settlement was derailed by a seemingly minor language point. The rooftop owners association was willing to contribute $50,000 per year in the form of a $14 "marketing" fee per ticket. The Cubs demanded that the fee be called a "license" instead, which could be construed as admitting that the rooftop businesses had been "stealing product" since 1914. Besides, the controversy can't really be about the money, since $50,000 is a quarter of the major league minimum salary of $200,000, and most washed-up veterans can demand far more.

2002-12-23 11:10:42
Politics, Politics, Politics!
This whole issue has been a huge mess here in Chicago. I live in the neighborhood, and here are a few thoughts on the issues, as I understand them:

Since this weblog only addresses the origin of the controversy at the very end, let me start there: This all started because the Cubs management wanted to expand their stadium, to eke a bit more revenue out of their aging facility without having to move out of the neighborhood. Part of that expansion would block some (perhaps many) of those expensive rooftop views.

Somewhat concurrently, the city has been trying to put Landmark status on the stadium. Without specific exclusions desired by the Cubs, this would make it extremely difficult to make any changes to the stadium, including the expansion they have in mind.

Throw into the mix that neighborhood approval is (nominally) necessary for a project like this to get the city's OK, and that one of the more powerful rooftop business owners got himself elected to represent the neighborhood association, and you've got Chicago Politics in the most entertaining sense.

I've seen the drawings of the proposed expansion, and it looks like it would fit in very nicely (it would even hide some of the uglier-but-oft-overlooked parts of the exterior wall as it stands now). I've been to community meetings where neighbor after neighbor stands up and announces support for the expansion. Yet the reports filtered through the newspaper are that the neighborhood residents are opposed to the project. And this from the newspaper whose parent company owns the Cubs...

The wind screens last year were publicly acknowledged as a hardball tactic against the rooftop owners. Since it didn't work, they may now be playing down the intent of that maneuver. The lawsuit is a result of the Cubs' total frustration with the negotiation process.

Of course, the issues run deeper than I've described (there's a whole argument about responsibility for parking, congestion, and public drunkenness, for example). But, I'm probably way over the limit of appropriate comment length, and I still have another point to address:

"His argument only makes sense if there are seats available to see the game inside the stadium." Though this is a minor issue, I must disagree. First, since the goal is to get additional seats into the stadium, having some other organization seat those overflow individuals is against the Cubs' interests. Second, since they get money from the television broadcats, every potential TV viewer who is up on a rooftop instead is not counted in the market share used to set advertising fees, etc.

Just my $0.02, marked up for inflation.