subscribe to this page The popularity of the Super Bowl over the years has lead to an increasing number of large Super Bowl viewing parties. However, the NFL has prevented establishments from doing so because they violated the NFL’s rights under Section 110 of the U.S. legal code, which prevents establishments from displaying performances on screens larger than 55 inches, a limit that originates from the Fairness in Music Licensing Act of 1998.
However, Michael M. Fenwick argues that this law does not apply to sports broadcasting because the Fairness in Music Licensing Act was written for authors within the music industry. Moreover, the author believes that when a party broadcasts a sporting event, there is an implied public license and that the definitions of "perform", "public performance" and "audience" should be redefined. Free broadcasting, he believes, should not be considered a performance.
Also, the author sees a big problem with the Nielsen ratings, which have created an economic incentive for the NFL to refuse licensing to public establishments. If the Nielsen ratings were not flawed, then having Super Bowl viewing parties would not even be an issue.
Fenwick bases his argument around the misuse of one law to apply to another, and that the NFL has used a broad interpretation of copyright law to suit their business interests. Due to this, he argues against the NFL having the right to ban establishments like casinos from holding Super Bowl viewing parties, because he believes public broadcasting should not be considered a performance. Therefore, sports broadcasts would not face audio and visual constraints, and establishments should be able to display sporting events on any size television.
Fenwick’s article complicates my argument. Since he does not believe that sporting events should be protected by the FMLA, therefore all types of establishments would be able to show the Super Bowl on any sized television, regardless of written copyright law. Therefore, the NFL would not have the right to prevent churches or bars from holding viewing parties.
However, his problem with the Nielsen ratings also applies to my argument. All other things aside, right now the NFL has incentive to deter establishments from holding viewing parties because higher Nielsen ratings equal higher revenue for the NFL. If the Nielsen ratings were fixed, as the author suggests, then the NFL would have more incentive to created licensing agreements with bars and churches to show the game, and therefore there would no longer be a dispute.
In response to the National Football League trying to ban churches from holding Super Bowl viewing parties, Pennsylvania Senator Arlen Specter has proposed new legislation. The bill, which was introduce to the Senate on February 4, 2008, is still in the first stage of the legislative process, was read twice and referred to the Committee on the Judiciary.
The bill, S. 2591, is intended to amend chapter 1, title 17 of the United States Code. The proposed legislation, if passed, would allow nonprofit organizations to show live football games without being penalized under copyright law. Section 110, title 17 of United States legal code outlines the exemptions of certain performances and displays from infringement of copyright law. Specter proposes that in Section 110(5), a subparagraph (C) should be added to account for nonprofit organizations wishing to display football games. The subparagraph specifies that transmission or retransmission of a professional football contest be exempted if no direct charge is made to watch it, no other money is collected by the organization during the game, and that the game is not further retransmitted.
By proposing this legislation, Senator Specter is not only arguing against the National Football Leagues intended ban, but also taking action to protect churches and other nonprofit organizations from the NFL’s strict interpretation of copyright law. Furthermore, the importance of this legislation is great. If Specter’s bill is to pass, it will virtually end disputes between the National Football League and churches over the holding of Super Bowl viewing parties. Thus, churches and other nonprofit organizations would have the legal right to hold these parties without violating copyright law.
Churches around the United States have held Super Bowl viewing parties for years, but with threats from the National Football League, many of the churches have stopped. Although they charge no fee nor do they use the event as a fundraiser, the National Football League has sent cease-and-desist letters to many of these churches warning them against holding such parties. The NFL argues that churches are violating copyright law by displaying the game on screens and televisions larger than the legal 55 inches. The NFL holds that the large parties held by churches, some up to 400 viewers, take away from the game’s TV ratings, which lead to decreased revenue.
Churches, on the other hand, argue that they, like sports bars, should be able to air the game on big-screen TV sets, and that holding Super Bowl parties help to reach out to members and non-members, and specifically teenagers, “in a non-churchlike atmosphere.” Nevertheless, many churches have cancelled or downscaled their Super Bowl viewing parties, moving them to homes or using smaller screens. One leader is even looking to take action against the NFL or file legislation to update an “outdated” law.
Whether or not the law is outdated or the church has significant reasoning to want to give people a place to come watch the game, the NFL’s reasoning is sound based on copyright law. Most sports bars are protected because they are included under the “food and drink establishments” that are under 3,750 gross square feet. Churches, however, must be under 2,000 gross square feet to display the game on a screen larger than 55 inches. While the discrepancy between sizes of venues could be altered with legislation, as the law stands now, the NFL has the right to pursue action against churches that holding Super Bowl viewing parties on big-screen televisions.
After sending a number of letters to churches around the country to stop hosting Super Bowl viewing parties, the National Football League has changed its stance on the issue. With a ton of pressure coming from churches and government officials in the form of protest and proposed legislation, the NFL and its Commissioner, Roger Goodell, have decided to allow viewings of the Super Bowl to be held in churches on big-screen televisions. This policy, holding that churches will not charge a fee for the event, will go into effect for the 2009 Super Bowl. Churches and church leaders have responded by praising the NFL for making such a decision, allowing them to enjoy the game in a group atmosphere that is not in a sports bar.
This decision by the NFL complicates the argument that these church viewing parties violate copyright law. While the viewing parties may benefit the community, as churches and officials argue, the display of a performance on a screen larger than 55 inches in an establishment larger than 2,000 square feet still violates written copyright law. The NFL should either create license agreements with churches or legislation should be passed to account for these types of large church viewing parties, which would therefore end any dispute for good.
In 1999 The National Football League filed a lawsuit against Coors Brewing Company and the National Football League Players Incorporated claiming that Coors’ new advertising campaign infringed upon the NFL’s trademark. The campaign promoted Coors as the “Official Beer of NFL players,” which Coors claimed to receive authorization of from Players Incorporated, a group that represents many but not all football players. The NFL argued that not only was the claim false, but that it also infringed upon the use of the NFL’s trademark rights by referring specifically to “NFL players.” In the lawsuit’s decision, the court upheld the NFL’s claim of trademark infringement, and ordered Coors to alter or remove “NFL players” from their campaign.
The significance of this case is the implications it has for the NFL’s trademark rights. The NFL, as copyright and trademark owner, has the rights over the use of many terms pertaining to professional football; including “NFL players” and also the “Super Bowl.” Just as in this case where the NFL has the right to stop advertisers from using specific terms, the NFL too has the right to ban establishments, such as churches and bars, from using “Super Bowl” when advertising for their game-day viewing parties. By promoting an event by explicitly using the term “Super Bowl” party, an establishment is infringing on the NFL’s trademark rights, and therefore the NFL has the right to take action against these venues.
In response to the National Football League warning churches to refrain from holding Super Bowl viewing parties, Sherwin Siy, the Staff Attorney and Director of the Global Knowledge Initiative at Public Knowledge, gave his own analysis of the issue. He notes that while the action taken by the NFL might be extreme, that Copyright Law does account for the fact that those churches using huge projection screens to display the game violates the NFL’s rights as copyright owners. His more important analysis though is that Copyright law, in giving control to the NFL as the copyright owner of the Super Bowl, allows the NFL to issue licenses to churches to display the game.
Siy’s argument, to implement licensing agreements, would help to end the disputes between the NFL and churches. The NFL would receive some type of payment, and churches would be able to still host their Super Bowl parties while only having to pay a small price. Therefore, this would be a reasonable solution so that copyright law would not be violated.
However, Siy also speaks against the NFL’s argument pertaining to church parties causing a drop in ratings, effectually causing a drop in revenue for the NFL. He holds that the measurement of viewership should not change just because of the congregations’ viewing parties, that it is unlikely that the congregation has Nielsen households. Siy’s article is important because while copyright law right now holds that the NFL is correct in their banning of church viewing parties, an implementation of licensing agreements, along with the assertion that ratings will not drop, presents a good solution to the dispute over viewing parties for both sides.
Recently, while fan bases are as strong as ever, ad sales for the sporting industry have gone down as much at 15 percent. With the state of the economy, ad revenue from the financial sector and domestic auto has slowed, but sectors like these have been offset by other long-term investments for the time being.
The NFL in particular is feeling the slump. Ads for normal Sunday games are selling for less than normal, and there are still a number of slots left open for commercials during the Super Bowl. Many previous, big Super Bowl advertisers have pulled out from putting a commercial in this year. Moreover, the argument here is that the sports industry is feeling the pressure of the hurting economy, and losing revenue because of it.
With the economy and advertisements down, the NFL needs higher ratings during the upcoming Super Bowl more than ever to see an increase in revenue. Therefore, this bolsters my argument because the NFL needs to protect against big Super Bowl viewing parties that infringe upon copyright, and therefore affect ratings. The NFL’s greatest source of revenue comes from advertisements, and unless the NFL makes licensing agreements with large Super Bowl viewing parties, they are losing revenue when establishments hold such parties. Moreover, while churches and other establishments may argue that the NFL has enough money and should not complain about small cuts, the NFL is still a business that looks to maxmize their profits, and they should not be looked down upon for trying to do so.
In this article from the 2008 Journal of Intellectual Property Law, Tyler McCormick Love argues that professional sports organizations repeatedly overstate copyright law. He claims that organizations, like the NFL, misrepresent the amount of copyright protection that the law provides, which inherently affects individuals and businesses that could benefit from legitimate copyrighted products. Particularly important to the NFL’s case is when the author argues against the NFL’s copyright warning. He holds that its expansiveness outstretches the NFL’s actual legal scope, and makes it difficult for individuals and businesses to know what is legal under copyright and fair use laws. Moreover, business owners are unsure what they can and cannot display in their establishments. This state of current laws allows copyright holders to take advantage of the general public, who does not have a good grasp of what true copyright law entitles them to.
The author suggests three key options to help ensure that sports organizations’ copyright warnings are more accurate: a copyright misuse doctrine should be strengthened, the Federal Trade Commission should file injunctions against those copyright holders who misuse the law, and Congress should set up mandatory guidelines for those organizations that use copyright warnings.
However, Love did note that according to written copyright law, the NFL did have the right to stop churches from hosting Super Bowl parties that were displayed on screens larger than 55 inches. What is important though, is that the public is getting confused by cases like this, which are held up by copyright law, and other cases in which the NFL misuses their copyright warnings. By controlling these misuses, the public will have a better overall understanding of copyright law, which would benefit society as a whole. This is important to my argument, because while the NFL may be misusing its copyright in some cases, the author still holds that the NFL has the right to ban some churches from displaying the Super Bowl.
In the battle between the National Football League and churches over Super Bowl viewing parties, Section 110, Chapter 1, title 17 of the United States legal code bears heavy importance. Section 110 outlines all of the exemptions of certain performances and displays from violation of copyright law.
Particularly important to the case of the Super Bowl and football games is paragraph (5) subparagraph (B), which accounts for the “communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station.” Legal code exempts these types of displays from violating copyright law if the establishment, other than a food or drinking establishment, has less than 2,000 gross square feet of space. However, it also accounts for establishments showing audiovisual displays that have greater than 2,000 gross feet of space. As long as no more than 4 audiovisual devices are used (with no more than one in any one room), none having a screen larger than 55 inches, and no more than 6 loudspeakers are used to communicate the performance, the establishments are not violating copyright law. In addition, no direct cost may be charged to see or hear the transmission and the transmission may not be further transmitted beyond the establishment where it is received.
Therefore, churches that are smaller than 2,000 gross square feet should face no problems with the National Football League when holding Super Bowl viewing parties. However, those larger than 2,00 gross square feet might. According to the text, churches that exceed the 2,000 square feet limit must comply with the other conditions, or they in fact are violating copyright law. This includes the provision that television screens do not exceed the 55-inch limit. Most churches that have received letters from the NFL have used large, movie-sized projector screens to show the Super Bowl, which violates copyright law and therefore the NFL has the right to warn churches against holding these types of gatherings.
Another important aspect of this legislation is that it also accounts for food and drinking establishments. The only difference between these types of establishments, like bars, and other establishments, like churches, is the size of the establishment. Whereas churches are only allowed to be 2,000 square feet without facing other audio and visual constraints, bars can be 3,750 gross square feet before facing these types of constraints. In the case that a food or drinking establishment is larger than 3,750 square feet, they too face the same audio and visual constraints. This establishment size discrepancy may be a very good reason that the NFL seeks to ban churches from displaying the Super Bowl more readily than it does bars. While bars often have more than four television screens showing the game in one room, churches, where the game is shown on one large screen, are often much larger than bars. Therefore, the NFL has the right to ban large churches from showing the Super Bowl, and does not have to the same right to do so to smaller bars.
In an article from 2004, the Las Vegas Review-Journal reported the efforts of the National Football League to protect its Super Bowl copyright in a number of big casinos. The NFL sought out and warned casinos and resorts against holding Super Bowl parties that violated copyright law by either charging a fee to watch the game, or by displaying the game on screens larger than 55 inches.
In addition, the NFL not only pursued action against venues in Las Vegas, but also many in New England and North Carolina, the hometowns to the two teams that were competing in the year’s championship.
According to the article, the NFL argued that by violating the NFL’s copyright over the Super Bowl and unfairly charging people to view the game, these venues were hurting ratings by not capturing these viewers. In turn, this hurt advertisers and thus hurt the NFL’s overall monetary gain.
In response to the NFL’s action, some of the venues cancelled their events, while others refunded charges and installed smaller screened televisions to display the game.
The importance of this article highlights the fact that the National Football League has not only pursued action against large churches, but food and drinking establishments as well. Here, the NFL spokesperson argues that the league pursues action against those establishments who violate copyright law based on the venue’s size, and their compliance with audio and visual requirements, such as the size of the screens displaying the Super Bowl. Moreover, the NFL pursues action against both food and drinking establishment and non-food and drinking establishments, and therefore does so to protect their copyright as laid out in the U.S. legal code, not to prevent one type of establishment from transmitting the Super Bowl to the public over another.