September 7th, 2016

Is your Bowl Bash Legal?

You’ve invited the entire neighborhood over to watch the Giants beat the Patriots on your new 80 inch, LED, viewmongous TV. Are you doing anything illegal?

Well, it depends. “Super Bowl”, “Super Sunday”, “Giants” and “Patriots” are all trademarks of the NFL and their affiliates. The broadcast of the game is copyrighted by them. So does your party violate their rights – and should you be concerned?

The NFL does police its intellectual property diligently – as the Fall Creek Baptist Church in Indianapolis discovered in 2007. They were planning to hold a screening of the Super Bowl and to charge a nominal entry fee to cover costs. However, when Rachel Margolies, an NFL lawyer discovered this – and that the church was planning to project the game onto a screen larger than 55 inches and to also show a film promoting Christian values at the same event, she immediately sent a “cease and desist” letter. Oddly enough, this is a field in which size actually does matter – and 55 inches is the size. The relevant law – 17 USC 1.110 – aka – “Limitations on exclusive rights: exemption of certain performances and displays” states that showing broadcasts using an audiovisual device are exempt if “no such audiovisual device has a diagonal screen size greater than 55 inches”. After much bad press and ridicule as the “No Fun League”, the NFL backed down the following year. They issued a statement clarifying that the league had no objection to churches hosting Super Bowl parties as long as no admission is charged and the game is displayed on “a television of a type commonly used at home”. They said nothing about coordination of other messages with the game or use of the term “Super Bowl.”

Fortunately, you don’t have to be quite as careful as the Fall Creek Baptist Church, as this exemption also states that turning on a TV in your own house is not a “public performance” under copyright law.

So you’re OK as long as you are not doing anything like setting up your TV outside, or charging admission to watch. You can, however, charge for drinks, as most sports bars will be doing on Super Bowl Sunday.

From a business perspective, the important thing is not to use any of the copyright terms in any promotional material. “Get your wings here for Super Sunday” or “10% reduction on all beers for Giant’s fans” could get you in trouble. “Get your wings here for the Big Game” or “10% reduction on all beers for New York fans” will not.

Finally: Our prediction: Giants 34, Patriots 28. But remember, this is not legal advice, just the opinion of the author.


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