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 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 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.
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.
The Hotaling v. Church of Jesus Christ of Latter-Day Saints case is important because it helps distinguish Google's use of thumbnails with cases that are actually not Fair Use. In this case, Hotaling, a group of researchers, compiled and copyrighted a number of genealogical research materials. At some point, the Church of Latter-Day Saints received one legitimate copy of the microfiche and added it to its main library's collection in Salt Lake City, Utah. Later, they made microfiche copies of the works without the Hotalings' permission and sent the copies to several of its branch libraries. There were many extenuating circumstances, but even with them the appellate court decided that this was copyright infringement.
This is especially relevant because Perfect 10 attempted to cite this case as part of their argument. "Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of Latter-Day Saints and Napster for the proposition that merely making images "available" violates the copyright owner's distribution right."(Perfect 10 v. Google) The Hotaling case differs significantly from the Google case. Hotaling made exact copies and distributed them to places that would otherwise have had to buy the copies. The infringement in this case was much more direct and obvious than what Perfect 10 accuses Google of doing with their thumbnails.
Regardless, this case demonstrates an important difference between Google and the average Fair Use case. Google is not distributing copies; they are creating thumbnails from other sites. Google is not creating these images entirely, nor are they distributing the images. Since merely making images "available" has been shown to not be enough for copyright infringement in the Hotaling case, we can carry that over to the Google case. This completely nullifies one of Perfect 10's arguments, even according to the Court, than this case is very essential to supporting my thesis. It both supports my thesis by both contrasting Google with the Hotaling case and establishing a precedent which takes away one of the opposing viewpoint's arguments.