My Official Super Bowl Television Post

kitten bowl[Madisonian readers: I wrote this for a general audience. I’m reposting here for your amusement/fact-checking.]

The 48th annual Super Bowl is tomorrow, which means of course that people are thinking about intellectual property law. (Doesn’t everyone?) No, I’m not going to talk about whether your local grocery store infringes on the NFL’s trademark when they advertise “Super Bowl Savings,” except to pose the question of whether a single person ever has been actually confused about whether that indicates a relationship between the NFL and the grocery store. Or the makers of this thing. Rather, I’m going to talk about television. Specifically, what size television can you watch the Big GameTM on?

The NFL caused a bit of confusion on this score when they sent a cease and desist letter to an Indiana church back in 2007 that was planning on hosting a Super Bowl party for church members, with a fee for attendance and the game displayed on a “giant” TV. (I can’t find a description of the exact size.) In the letter and in subsequent pronouncements, the NFL took the position that it was a violation of copyright law to display the Super Bowl to a public gathering on a screen larger than 55 inches diagonally. In the face of likely congressional legislation in 2008, the NFL backed down and said it would not enforce its rule against church groups. But it still maintains that others cannot display the game publicly on sets larger than 55″.

News stories about the controversy have gotten some parts of the relevant copyright law correct, but are still a bit confusing on the 55-inch “rule” and where it comes from. So I’ll try to clarify. The short version: There is no 55-inch rule, at least not for the game itself.

1. So can I watch the game on my huge television screen at home?

Yes, you’re fine, as long as you are inviting over only family and friends. First, let’s start with the basics. The NFL owns the copyright over the video of its game — apparently assigned to the NFL by the television network that actually creates the video. (The NFL does not own a copyright over the game itself, the subject of another post perhaps.) Copyright law grants copyright owners such as the NFL a right not only over making copies, as you might expect, but also over “public performances” of the work. Performing a work includes not only acting it out live on a stage, like a play or a musical composition, but also rendering it, by transmitting it over the air or pressing a button on a playback device. So when you hit play on the DVD player, or tune in to Fox on Sunday night, you are “performing” the copyrighted works that then begin to spool out from the TV.

But a copyright only grants the owner the exclusive right to perform the work publicly. Private performances are completely beyond the scope of the Copyright Act. “Publicly” is defined in the current Copyright Act as, for in-person performances, “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” Unless you live at Mount Vernon, your house is not open to the public, and even if a few friends of friends come over who you didn’t invite, you won’t have a substantial number of people outside the normal circle of your friends and family over to the house. So show it on multiple wall-sized TV screens plastered all over the house, it doesn’t matter, copyright has nothing to say about that.

2. What about a private club or a church group?

Well, performances to those groups fall within the definition of “publicly.” Even if the group is restricted somehow in its membership, once it goes beyond the “normal circle” of a single family and that family’s acquaintances, it becomes “public.” That’s not accidental; the definition was crafted to crack down on bar and restaurant owners trying to evade the need for public performance licenses by designating their establishments as “private clubs” (to which anyone who wanted could join as a member).

3. So it’s illegal for clubs, church groups, and commercial establishments to turn on the Super Bowl without permission?

Not so fast! This is copyright. There are epicycles upon epicycles.

First off, I’ll take issue with the word “illegal.” To my mind, to call something “illegal” means it is a violation of public law — law that the government enforces. It’s not as clear as it should be, but I’ve never heard of a prosecution for turning on a television in public, so I think the real question here is whether it violates the copyright owner’s public performance right, for which that owner could sue.

And on that question, there is a broad exemption from the need for a public performance license contained in Section 110(5) of the Copyright Act, that allows anyone, including bars, restaurants, grocery stores, church groups, or whoever, to display a television broadcast on a single, ordinary television set. Specifically, Section 110(5)(A) provides that, “except as provided in subparagraph (B),” the following does not violate the public performance right:

the public reception of [a] 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.

The Indiana church in 2007 ran afoul of the first condition to this exception listed here: they made “a direct charge” to see the game (3 dollars). The second condition excludes people using ordinary equipment to then further transmit broadcasts to, say, their tenants in an apartment building. Assuming a business or organization is not doing either of those things, then it can show the game on a single television set like those commonly used in homes.

4. So what’s the maximum size TV a bar or church group can use?

Now we’re getting to the heart of the dispute. Suppose a bar shows the Super Bowl to its customers on a 60-inch plasma-screen TV. Will the bar be liable for infringement of the NFL’s public performance right? It’s a performance (turning the TV on and tuning to Fox) to the public (the bar customers). So the question is whether Section 110(5)(A) applies.

And in order to figure out the answer to that, we need to figure out whether the 60-inch plasma display is a “single receiving apparatus of a kind commonly used in private homes.” Certainly you can buy such a thing for your house. But how common is it? And how common does it need to be? On the latter question, courts have given us very little guidance, and the guidance there is mostly comes from cases involving either stereos or television antennas.

Courts examine the entire set-up, including receiver, speakers, installation, and antennas as a single “apparatus” to determine if the system as a whole is “a kind commonly used in private homes.” So for example, in Broadcast Music v. Claire’s Boutiques, 949 F.2d 1482 (7th Cir. 1991), the court found that a small, 5-watt receiver (list price $130, or $231.71 in 2013 dollars), wired to two small ceiling-mounted speakers 5 to 35 feet away, was a “home-type” sytem. But another court in 1987 found a receiver with paging capabilities, three sets of speaker terminals, and the power to drive up to 40 speakers was not “of a type commonly used in private homes.” is clearly not the type of receiver commonly used in the home. Int’l Korwin Corp. v. Kowalczyk, 665 F. Supp. 652, 657 (N.D. Ill. 1987), aff’d, 855 F.2d 375 (7th Cir. 1988); see also Cass Cnty. Music Co. v. Muedini, 55 F.3d 263, 268-69 (7th Cir. 1995) (ordinary receiver modified to handle nine speakers and extremely long cable runs not home-type).

The television cases are more informative. In NFL v. McBee & Bruno’s, 792 F.2d 726 (8th Cir. 1986) the NFL sued to shut down restaurant owners using satellite dishes to get network feeds of blacked-out games. The district court, affirmed by the Eighth Circuit, found that the use of the satellite dish made the system not “of a kind commonly used in private homes.” The court found that there were “less than 1,000,000 dish systems in use” in the country, mostly for commercial establishments, and that satellite dishes in the United States “are outnumbered by television sets by more than 100-to-one,” typically costing $3,000 to $6,000 (2013: $6,495.08 to $12,990.17) compared to a television set’s cost of around $100 or more. Moreover, what little residential use existed was for homes “so situated that access to television station broadcasting by standard television antennae is poor,” whereas the defendants were all located in St. Louis. The Eighth Circuit noted that there was “testimony that the number of such receivers has been growing rapidly,” but “while some day these antennae may be commonplace, they are not now.”

NFL v. Rondor, 840 F. Supp. 1160 (N.D. Ohio 1993), is even more specific. In Rondor, defendants in Cleveland used, instead of a satellite dish, high-gain VHF antennas to pick up the over-the-air broadcast from Toledo. The antennas in question were unusually large, with 9-13 VHF elements, 8-10′ masts, boom lengths of 7-10 feet, a rotor (to turn the antenna), and a preamplifier to improve the gain. Such systems were in residential use by homeowners on the “deepest fringe” of a television broadcast area, but were uncommon in urban areas like Cleveland. In fact, the NFL sent investigators to survey rooftops around the bars, and found that only 10% had nine or more VHF elements, only 11.8% had boom lengths of 7′ or more, and only 1.8% had a preamplifier. The average antenna was much smaller, a combination UHF/VHF antenna with 4-6 elements, a boom length of 5 feet, and no preamplifier or rotor. The Rondor court concluded that while “the various components of [the defendants’] antenna systems are available for use in private homes,” they did not “show that their antenna systems are ‘commonly used in private homes.'”

From Rondor and McBee & Bruno’s, it looks as though the mere fact that an 80″ television is available for purchase by residential consumers is not enough to exculpate the bar owner who has one in their establishment. Using Rondor as a guide, top-end equipment used by 10% or so of the market may fall out of the homestyle exemption. So what size televisions are those? It’s a little difficult to obtain reliable data on how common large-screen televisions are. This graph, from 2009, indicates that televisions with screens of 55-65 inches had a substantial chunk of the market in 2006, but then tailed off (and of course, there are lots of existing sets to displace). Other sites indicate that televisions with 60″ screens are among the top sellers today. The 80″ screen, or even 70″ screen, would seem a bit risky by that standard, but perhaps it will become more common in the future.

Again, none of this applies to residential users, who are engaged a nonpublic performance of the program. For those displaying the broadcast to a group that goes beyond a family and friends, however, 60″ would appear to be the safe upper limit.

5. Wait, what about the 55-inch rule?

There is no 55-inch rule — at least, not for ordinary television programming like a football game. There’s a section of the Copyright Act that refers to 55-inch screens, but it comes just after the homestyle exemption I’ve been quoting from — and it applies only to broadcasts of “nondramatic musical works,” that is, musical compositions other than opera or show tunes. Remember the ” “except as provided in subparagraph (B)” language above? Section 110(5)(B) of the Copyright Act was intended to alleviate some of the confusion about whether various configurations of audio equipment fell within the homestyle exemption. Another factor the courts commonly looked at was the size of the store. So Congress added a specific exemption that applies only to nondramatic musical works, and specifies exactly what equipment various establishments can use that falls within the exemption. Small stores, bars, and restaurants are totally exempt: those establishments can use any equipment at all to play music, and they will not need a public performance license. Larger stores, however, can only use certain equipment to play music without paying a license. If we are talking about a performance of a musical work “by audiovisual means” — such as a music video — then to qualify for the exemption it must be shown on “a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches.”

So there’s our 55-inch rule. But it applies only to performances of musical works on television, not other sorts of works. So the broadcast of the game is not subject to the rule. But here’s the thing — there are musical works during the Super Bowl telecast. There’s the theme music before the game and before and after breaks. But more significantly, there’s the halftime show. If our hypothetical bar shows the Super Bowl on a 60-inch television, then, the NFL might not be able to come after them, but it’s possible that Bruno Mars or perhaps the Red Hot Chili Peppers will.

[Cross-posted at the Marquette University Law Faculty Blog.]