More on the Super Bowl and Public Performances
More on the Super Bowl and Public Performances
More on the Super Bowl and Public Performances

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    In a post from last week, I mentioned the warning letters the NFL has been sending to churches, claiming that they were infringing copyright by hosting Super Bowl parties. Something else that struck me as odd about the letters was the fairly arbitrary designation of 55 inches as the cutoff for an allowable TV size.

    Yes, there's a 55-inch specification in the Copyright Act, but that applies to non-dramatic musical works—something that, while it might apply to the halftime show (some years, there's more drama than others, I suppose), doesn't characterize a football game. The relevant part of the law (17 U.S.C. § 110(A)) says:

    (A) except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless—

    (i) a direct charge is made to see or hear the transmission; or

    (ii) the transmission thus received is further transmitted to the public;

    So, as long as the TV is of a type “commonly used in private homes,” it's ok. I doubt that Congress, or the courts, were interested in surveying mean or median TV sizes across the country, so I think it'd be safe to say that TVs sold for home consumer use should be ok, whether or not they are larger than 55 inches. And of course, there's quite a few of those on the market, if not exactly in my living room.

    Of course, that runs up against the question of whether a 60-inch TV is automatically considered not of a type typically found in homes, if interpreted in light of the next section, the neurotically detailed 17 U.S.C. § 110(B), which is the provision that applies to musical works.

    Of course, this later section with the 55-inch limit was added to the law in 1998 (alongside the Sonny Bono Copyright Term Extension Act), and I think it's clear that standards for TV sizes have changed in the last ten years. So here's a great illustration of the benefits of having relatively clear, yet flexible standards in the law.

    Apropos of this, I wanted to point out a bill just introduced by Senator Arlen Specter (R-Pa), Ranking Member of the Senate Judiciary Committee. S. 2591, in its entirety, reads:

    Section 110(5) of title 17, United States Code, is amended—

    (1) in subparagraph (A), by inserting or (C)' after(B)';

    (2) in subparagraph (B)(v), by adding or' after the semicolon; and
    (3) by adding at the end the following:
    (C) communication by an entity defined under section 3121(w)(3)(A) or (B) of the Internal Revenue Code of 1986 of a transmission or retransmission embodying a performance of a professional football contest intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or if an audiovisual transmission, by a cable system or satellite radio, if-

    (i) no direct charge is made to see or hear the transmission or retransmission;
    (ii) during the communication no money is accepted or received by the organization; and

    `(iii) the transmission or retransmission is not further retransmitted by the establishment where the transmission or retransmission is received.'.

    This has the effect of allowing churches to show broadcast football games, so long as they don't charge admission or take collections.

    I think that's a laudable goal, but would hope that existing law would account for it, and without all the fiddly little specific requirements. Let's look at this. To qualify for the exception, you have to:

    1. be a church;
    2. not charge admission;
    3. not take a collection (even for snacks?);
    4. be showing a free-to-air (i.e. not cable or pay-per-view) broadcast of a:
      1. professional
      2. football game.

    Not a church (or church controlled organization)? Out of luck. Sorry, community center. Take a collection? Someone drop a buck in the collection box? Too bad. Game on cable? No exception for you.

    And if your church wants to have a party centered around a televised college game? No dice. NBA? World Series? Nuh-uh.

    I suppose the bill could be even more specific, and apply only to the Super Bowl, but then maybe Congress or the GPO would get a cease and desist from the NFL for infringing their trademarks.