Super Bowl Party and Some "Not So" Divine Intervention

It is not divine intervention, but commercials that are driving couch potatoes from the temple. Nielsen ratings reportedly do not measure out-of-home viewings like the one planned this Sunday in Indianapolis at Fall Creek Baptist Church. NFL officials, concerned their $2,500,000.00 30 second commercial ad rates might plummet are forcing Fall Creek Baptist Church to cancel its planned "Super Bowl Bash."

The NFL alleges that using the term “Super Bowl” and charging admission to see the game violates the NFL’s trademark and copyright. Church officials responded that they would stop using the term “Super Bowl” and would not charge admission. That was not good enough for the NFL, however, which alleges the law restricts the church to a screen 55” or smaller. The NFL is apparently referring to Title 17 of the United States Code, Section 110(5). While that code section does refer to a 55” screen, the church would still be in the clear if the church was less than 2000 square feet OR the single television or projector was of a kind commonly used in private homes.

When confronted with an 800 pound gorilla, most people back down without questioning their own rights. Often times a quick call to a patent, trademark and copyright attorney can provide you with ideas on how to do what you want to do without running afoul of the law or of third party intellectual property rights. We typically prefer you contact us BEFORE you get in trouble, but late is preferable to never.

BTW/if anyone from Fall Creek Baptist Church is interested in viewing the game in a 2000+ square foot venue on a 65” television let me know. I will be hosting a 17 U.S.C. §110(5)(A) exception party in Des Moines this Sunday night.

Brett Trout

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Super Bowl Law

Title 17 of the United States Code, Section 110(5) states that the following DO NOT constitute copyright infringement:

(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;
(B) communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work 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 carrier, if—
(i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and—
(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of 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, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;
(ii) in the case of a food service or drinking establishment, either the establishment in which the communication occurs has less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and—
(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;
(iii) no direct charge is made to see or hear the transmission or retransmission;
(iv) the transmission or retransmission is not further transmitted beyond the establishment where it is received; and
(v) the transmission or retransmission is licensed by the copyright owner of the work so publicly performed or displayed;

Brett Trout


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