The primary issue involved in this appeal is whether major league baseball clubs own exclusive rights to the televised performance of major league baseball players during major league baseball games.  For the reasons stated below, we will affirm in part, vacate in part, and remand for further proceedings.

I

This appeal arises out of a long-standing dispute between the Major League Baseball Clubs (Clubs”) and the Major League Baseball Players Association (“Players”) regarding the ownership of the broadcast rights to the Player’s performances during major league baseball games.  After decades of negotiation concerning the allocation of revenues from telecasts of the games, the Players in May of 1982 sent letters to the Clubs, and to television and cable companies with which the Clubs had contracted, asserting that the telecasts were being made without the Players’ consent and that they misappropriated the Players’ property rights in their performances.  The mailing of these letters led the parties to move their dispute from the bargaining table to the courtroom.

Our analysis begins by ascertaining whether the Clubs own a copyright in the telecasts of major league baseball games.  In general, copyright in a work “vests initially in the author or authors of the work.”  17 U.S.C. Section 201(a): however, “in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author . . . and, unless the parties have expressly agreed in a written instrument signed by them, owns all of the rights comprised in the copyright.” 17 U.S.C. Section 201 (b).  A work made for hire is defined in pertinent part as  “a work prepared by an employee within the scope of his or her employment.”  Thus, an employer owns a copyright in a work if (1) the work satisfies the generally applicable requirements for copyrightability set forth in 17 U.S.C. Section 102 (a), (2) the work was prepared by an employee, (3) the work was prepared within the scope of the employee’s employment, and (4) the parties have not expressly agreed otherwise in a signed, written instrument.

a. Copyrightability of the telecasts

The district court concluded that the telecasts were copyrightable works.  We agree.  Section 102 sets forth three conditions for copyrightability: first, a work must be fixed in tangible form; second, the work must be an original work of authorship; and third, it must come within the subject matter of copyright. N5 See 17 U.S.C. Section 102(a).  Although there may have been some question at one time as to whether simultaneously recorded live broadcasts were copyrightable, this is no longer the case.  Section 101 expressly provides that “[a] work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ . . . if a fixation of the work is being made simultaneously with its transmission.  “Since the telecasts of the games are videotaped at the same time they are broadcast, the telecasts are fixed in tangible form.

As for the telecasts’ creativity, courts long have recognized that photographing a person or filming an event involves creative labor.  The many decisions that must be made during the broadcast of a baseball game concerning camera angles, types of shots, the use of instant replays and split screens, and shot selection similarly supply the creativity required for the copyrightablitiy of the telecasts.  See House Report at 52 (“When a football game is being covered by four television cameras, with a director the activities of the four cameramen and choosing which of their electronic images are sent to the public and in which order, there is little doubt that what the cameraman and the director are doing constitutes ‘authorship.’”). 1

Moreover, even if the Players’ performances were not sufficiently creative, the Players agree tat the cameramen and director contribute creative labor to the telecasts.   The work that is subject of copyright is not merely the Players’ performances, but rather the telecast of the Player’ performances.  The creative contribution of the cameramen and director alone suffices for the telecasts to be copyrightable.

Because the Players are employees and their performances before broadcast audiences are within the scope of their employment, the telecasts of major league baseball games, which consist of the Players’ performances, are works made for hire within the meaning of Section 201(b).  Thus, in the absence of an agreement to the contrary, the Clubs are presumed to own all of the rights encompassed in the telecasts of the games....

In this litigation, the Players have attempted to obtain ex post what they did not negotiate ex ante.  That is to say, they seek a judicial declaration tat they possess a right – the right to control the telecasts of major league baseball games – that they could not procure in bargaining with the Clubs.  The Players’ aim is to share in the increasingly lucrative revenues derived form the sale of television rights for over-the-air broadcasts by local stations and national networks and for distribution by subscription and pay cable services. Contrary to the Players’ contention, the effect of this decision is not to grant the Clubs perpetual rights to the Players’ performances.  The Players remain free to attain their objective by bargaining with the Clubs for a contractual declaration that the Players own a joint or an exclusive interest in the copyright of the telecasts.

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1The 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.