The Super Bowl III Problem

I've talked alot about the dangers of copyright infringement regarding the NFL - TiVo, Super Bowl parties in Vegas, the NFL photo archive, etc.  However, before the 1976 Copyright Act even existed, one of the most famous NFL copyright infringment incidents of all time occured - the "Super Bowl III Problem."  This incident raised the issue of the property rights of live game broadcasts, and for the first time confronted the illegal and unauthorized distribution of a recorded NFL game - Super Bowl III.

Super Bowl III took place in 1969, 7 years before our current copyright law was enacted.   Although VCR's were a rare commodity back then, a taped VHS copy of the game ended up on e-bay a few years ago.   Nowadays, the NFL owns the copyright to all broadcast games due to many long-term agreements with teams and networks.   But back in 1969, property rights to such broadcasts differed significantly from what they are today.   The NFL still contracted with networks and teams, but were not afforded copyright protection.  The genesis of the "problem," then, was "what cause of action arises from the copying and unauthorized distribution of the taped live broadcast of Super Bowl III?"

Each NFL franchise owns the rights to their team's live television and radio broadcasts, as well as the right to license these broadcasts.  The two teams at issue here are the New York Jets and the Baltimore Colts (now, the Indianapolis Colts). However, there was a discrepency in who owned the copyright to the game, and the article notes that:

"There was no record of a Copyright Registration for Super Bowl III by the NFL, AFL, Baltimore Colts or New York Jets.  Secondly, the NFL in this case refers to the National Football League as it existed prior to the merger with the AFL in 1970.  Thus, the New York Jets negotiated its television contracts in conjunction with the AFL.  In 1970, both leagues merged into the NFL, as it is now known.  There is a question as to whether or not the Jets’ rights via the AFL were transferred to the newly credited NFL.  "

Assuming, then, that the NFL owned the broadcast rights to Super Bowl III, the only was they would be able to successfully bring a copyright infringment suit for unauthorized distribution of the game depends on whether the League had a valid copyright in a VCR recording of the game.

To answer this question, a similar case comes into play.  NBC had encountered a pirated VHS tape a few years earlier of its broadcast of Peter Pan from 1960!   NBC did not register for a copyright of Peter Pan until 1980, when current copyright law was governed by the 1976 rather than the 1909 Act.   Sonneborn, the man responsible for the pirated copy of Peter Pan, argued that NBC did not register for the copyright certificate until 5 years after the film was published.   NBC, however, said distributing the film to NBC affiliates across the country "constituted a limited publication under the standard established by the 1909 Act."

Ultimately, the court decided to apply the provisions of the 1909 Copyright Act and held that NBC's distribution to its affiliated equated a limited publication, and their copyright certificate was valid.  NBC was essentially allowed to register for a copyright of Peter Pan 20 years after it aired, and they only did so after they found it was being "illegally" distributed.

SImilarly, the NFL does not own a copyright to the Super Bowl III broadcast.  They could register for a copyright today under the 1976 Act, but in order for them to recover damages on infringment claims, they would have to prove that somehow, the distribution of the VHS tape amounted to behavior that would "invalidate a copyright certificate made under the 1909 Act."

The court in the NBC case defined a limited publication under the 1909 Act as “communicating the contents of a work to a definitely selected group and for a limited purpose, without the right of diffusion, reproduction, distribution or sale.  The circulation must be restricted both as to persons and purpose.”  Applying this to the Super Bowl III problem, it appears that that broadcast could also be termed a limited publication.   Further strengthening the NFL's case is the fact that the game wasn't distributed to any affiliates for rebroadcasting purposes. 

So, should the NFL register for a copyright of the Super Bowl III broadcast, and have that copyright upheld in court, then the online distributor of the VHS tape would be considered to have infringed on the NFL's copyright.

The root of this problem, and many other copyright infringment cases, stems from the development of new technology that allows for the furtherance of unauthorized distribution of all types of media.  In order to combat this problem, copyright law and courts alike will need to keep up to speed with new developments, and adjust both the law, and remedies, accordingly.