Corynne McSherry, intellectual property director of the Electronic Frontier Foundation, told NBC News Monday that "...NASCAR does not hold the copyright in a fan video."
"NASCAR also cannot claim that the fan has granted NASCAR ownership of that recording based merely on the fine print on the back of a ticket."
Besides, he [Hermes] thinks there's "a serious question as to whether NASCAR has a valid copyright claim in an unscripted sporting event," such as Saturday's race. It's the kind of event, he said, that is "different from a scripted 'performance'" such as a rock concert "in which copyright might arise under U.S. law."
The EFF has seen this sort of thing before. When Showing Animals Respect and Kindness, an animal-rights activist group, filmed rodeos in order to demonstrate alleged abuse, the Professional Rodeo Cowboys Association fired back, requesting takedown of 13 videos. At the time, YouTube responded by eliminating the activists' account.
When the EFF took the case to court, it was settled in 2009. The agreement protects the group's "right to publicize their critiques."
"The (rodeo association) has no copyright claim in live rodeo events, just as NASCAR has no copyright claim in fan videos," says McSherry.