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.

    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.

For many years, churches and sports bars have been the host of large Super Bowl viewing parties, which display the game on large-screen televisions. Over the past few years though, the National Football League has taken action against those venues whose space and television sizes violate copyright law. Also, the NFL has warned against using their term the "Super Bowl" to promote these parties. In particular, the NFL actively pursued churches that held such parties, until pressure from church and government officials pushed the NFL to exempt the churches from the law, arguing that they should have the same rights as those sports bars that are exempted. In fact, the copyright law does not fully exempt sports bars from hosting Super Bowl parties, but does allow for these particular food and drinking establishments to be almost twice the size of other venues before having to face audio and visual constraints on their displays. Many believe that the NFL is abusing copyright law. However, while the discrepancy between the different types of establishments requirements may not be fair, according to copyright law, the National Football League has the right to ban churches and other large venues from holding big-screened Super Bowl viewing parties until new legislation is passed or licensing agreements are made between the NFL and the hosting party.

    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 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.

    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 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.

In a somewhat tangential, but related topic, John Facenda Jr has sued the NFL, NFL Films Inc and NFL Properties LLC for using his father's voice without permission. John Facenda Sr earned the nickname, "Voice of God", for his narration of numerous highlight films for NFL Films. The NFL is allowed to use Facenda Sr's voice provided it does not endorse product, but it was allegedly used to promote the video game, Madden 2006. The NFL Network broadcast a show called "The Making of Madden 2006" and used Facenda's voice during a portion of it. Facenda Jr's lawyer alleges that the show was essentially a commercial for Madden 2006 and was used without permission. This is not the first Facenda Jr has filed suit with regards to his father; he previously settled a lawsuit with Campbell's Soup for using a sound-alike voice in their ads.

In all likliehood, the provision of that Facenda Sr's voice not be used in a promotional manner is partially to protect "the integrity of his father's voice" but also ensure Facenda Jr receives compensation if he agreed to license the use. If the NFL did use Facenda Sr's voice in a promotional manner without permission, they are making money off his voice without giving money to a copyright holder.

It is my opinion that "The Making of Madden 2006" was shown to promote the game and that the use of Facenda Sr's voice was used in a promotional manner without permission. I acknowledge that this infringement may be unintentional, but not unlike many unintentional, unknowing infringements that occur on a routine basis everyday. The NFL wants proper compensation from the consumers, while trying to further their monetary gain without giving contributors their proper compensation. If Facenda Jr refuses to license the voice even with compensation, the NFL would be upset; no different than how the Las Vegas establishments felt when denied the opportunity to pay a licensing fee for broadcasting the Super Bowl.

This is a class action suit brought against the NFL for violating the Sherman Anti-Trust Act. The Sports Broadcasting Act of 1961 (SBA) exempted professional sports leagues from the Sherman Act and allowed them to collectively sell their broadcasting rights. The NFL agreed to sell broadcasting rights to DirectTV so they could sell NFL Sunday Ticket packages to the public. This package is considered "all or nothing" for you either purchase the ability to view all games, or you are limited to only the 2 games in your region. Shaw argues that this limits options for the public while creating artificially high and non-competitive prices. The Court of Appeals affirmed the District Court's decision that the NFL's actions did not fall within the bounds of the SBA. The NFL already received an exemption to the Sherman Act and that exemption must be narrowly construed according to the Court; after already being granted an exemption it would be wrong for the NFL to be allowed so much latitude.

After reading the Fenwick article, I had sympathy for the NFL, actually believing they were being deprived of their due "piece of the pie". However, I find it improbable that the NFL believed that their contract with DirectTV was fair to the consumer population. If Direct TV is the only provider and offers only one option, they essentially hold a monopoly on the market. If a compromise is to be made between the NFL and their fans, each group needs to be conscious of each other's well being. The consumer can not be held responsible for a ratings system that does not properly reflect viewership; the NFL should, and was held responsible for taking advantage of their fans. Is the NFL acting as a typical capitalist profit seeking firm? To a point yes, but Shaw reveals some greed on their part. The Nielsen ratings already limit consumers' options on the Super Bowl, now the NFL Sunday Ticket limits their options every Sunday. The latter action leads to me to stop giving the NFL the benefit of the doubt.

Bill Adkinson who wrote this blog, basically takes the stance that he doesn't like what the NFL did, but he understands why. The Super Bowl is not a pay per view broadcast, and it is free for the public because it is being paid for by advertisers. However, without advertisers, there is no broadcast, and what attracts advertisers is large numbers of their key demographics tuning in to the show they are advertising for. When fewer people are watching a show (whether because there truly are fewer people watching or the ratings are inaccurate) advertisers aren't willing to pay as much. Adkinson's comment is "Oh of course. Show me the money!"

 Adkinson quickly changes his tone though as he acknowledges the economics behind the NFL's logic. They are limited by the fact that they are dependent on advertisers to keep their games on the air waves. The multi-million dollar contracts signed every year by players have to be financed by something; the majority of which comes from advertising dollars. Thus there is a great deal of pressure on the NFL to get "eyeballs on the screen" as Adkinson says. The measurement of these "eyeballs" comes in the form of Nielsen ratings generated by boxes in people's homes that track what programs are being watched. How these ratings are measured are not determined by the NFL, they are at the mercy of the system.

 What is the solution? Adkinson's recommendation is that content providers provide the opportunity to enjoy excellent content in a convenient format so that they get what they pay for. If the content providers would assured of getting what they pay for, this would be a reasonable solution. With the average Super Bowl party hosting 17 people in 2001(http://advertising.about.com/od/superbowlcoverage/a/xxxvfunfacts.htm) it is apparent that Nielsen ratings are not the ideal measure of viewership. If consumers good enjoy a good football game in a sports bar drinking beer with their buddies watching on a big screen AND the Nielsen ratings reflected that 3000 people were watching, everyone would get what they pay for.

.

This article gives the NFL a chance to explain their actions against the Las Vegas casinos. League spokesman Brian McCarthy said, "What's happening is that these establishments are charging admission for something we provide for free. The viewers (at these events) are not captured in ratings. That, in turn, hurts our advertisers. Advertisers sustain the networks that pay the NFL its rights fees" McCarthy also added that the NFL evaluates the legalities of such parties based on the locale, size of the screens, and whether an admission fee was charged. The NFL  does not just target Las Vegas; they also sent cease and desist letters to venues in New England and North Carolina (areas whose teams were in the Super Bowl) and also Houston where the Super Bowl was played in 2004. As a result, several places made adjustments to comply with the NFL's request, while some were forced to completely cancel their parties. The Orleans and The Palms were among those that had to cancel, and sustained a financial loss as a result. The Palms were set to not only show the Super Bowl on a movie theatre screen, but they were also charging admission. The general manager, Jim Hughes said they will take quite a financial hit after refunding 1000 $40 admissions and paying for 120 50 inch plasma televisions.

The most interesting part of this article is where it says:

The NFL's complaints about the hotel-casinos' Super Bowl parties does not apply to their normal sports book operations, since companies that operate the books purchase special packages allowing them to air football games for the convenience of their customers.

In other words, the NFL does not have an issue with regular season games, just with the Super Bowl. The Super Bowl is unique because it is the only game on, it is a championship game featuring the NFL's two best teams, and it attracts a wide variety of fans; even some who do not even like football but like the new (and often comical) commercials. The NFL certainly seems to like having exemptions made when it is convenient for them, but then again, they do provide us with free entertainment for several months. Would it really be asking too much for society to give back just a little and abide by the NFL's wishes during the Super Bowl? If I felt confident that the NFL would not further push the envelope, I would say ok, but I am not that confident. Personally I think one of two things should happen: either the NFL should license these establishments for a price, or a method should be developed to count the number of people at Super Bowl parties. The latter seems no more complex that filling out a diary of a days worth of radio listening.

NFL.com will help provide information on the significance of feminized sports hats and other such products. As mentioned in another article, presence of pink hats has caused a significant response by both women and men.  Women tend to like them, whereas men think they are wrong, infuriating, or any number of other negative opinions.