NFL

There's Just One Known Recording of the First Super Bowl Broadcast, and the NFL Wants to Keep a Man From Selling It

A tale of football, lawyers, and videotape

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A Quadruplex video reel. It's like a thumb drive, if a severe genetic defect gave you enormous thumbs.
Yrithinnd/Wikipedia

There is only one known recording of the original broadcast of Super Bowl I. It belongs to Troy Haupt, a middle-aged nurse in North Carolina who wasn't alive when the game was played. His dad taped it at work on a Quadruplex video machine, and eight years later, as the man was dying of cancer, he gave the reels to his ex-wife. "He said maybe they could help pay for the kids' education," she told The New York Times, which just ran a fascinating story about the tapes.

The reels spent a few decades deteriorating in her attic before Haupt arranged for the Paley Center for Media to restore them. Meanwhile, the networks wiped their own recordings of the broadcast. (The first Super Bowl was televised by both CBS and NBC; the surviving recording comes from CBS.) The National Football League recently reconstructed the game from NFL Films' original footage, and that aired on cable last month.

Haupt offered to sell the tapes to the league for $1 million. The NFL offered $30,000 instead, then decided that it didn't want to purchase them at all. That's fine: No one is obliged to buy an old recording of a football game, and this one isn't even a complete recording. (Halftime and a chunk of the third quarter are missing, as are some bits around the commercial breaks.) What's not so fine is that the NFL is trying to keep Haupt from selling his artifact to anyone else.

I'm not convinced the league is on solid legal ground here, but the Times writer seems to think it is. Here's how he describes the situation:

All my rowdy friends are coming over to sue your ass.
Curb Records

Haupt owns the recording but not its content, which belongs to the N.F.L. If the league refuses to buy it, he cannot sell the tapes to a third party, like CBS or a collector who would like to own a piece of sports history that was believed to be lost….

A letter from the league to [Haupt's attorney Steve] Harwood last year provided a sharp warning to Haupt. "Since you have already indicated that your client is exploring opportunities for exploitation of the N.F.L.'s Super Bowl I copyrighted footage with yet-unidentified third parties," Dolores DiBella, a league counsel, wrote, "please be aware that any resulting copyright infringement will be considered intentional, subjecting your client and those parties to injunctive relief and special damages, among other remedies."

The law favors the league, said Jodi Balsam, a professor at Brooklyn Law School.

"What the league technically has is a property right in the game information and they are the only ones who can profit from that," said Balsam, a former N.F.L. lawyer.

As David Post points out at The Volokh Conspiracy, there are three problems here:

I don't think my dad ever shared any memories of watching the first Super Bowl. But oh, how he loved to tell the tale of the Heidi game.
NFL

1. The NFL does not own the "game information." It owns the broadcast. Not a major point, but worth noting.

2. Under the first sale doctrine, "the owner of a particular copy lawfully made under [the 1976 Copyright Act], or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy." And in 1984, the Supreme Court ruled that private noncommercial video recordings are indeed lawfully made. Post acknowledges that "a 1984 case construing the 1976 Copyright Act has a somewhat uncertain application to events taking place in 1967." But he adds that he'd "much, much rather be arguing Haupt's side of that case than the NFL's, if it came to that."

Needless to say, this does not mean that the law allows Haupt to make a bunch of copies of his recording and sell those. But it would mean he can sell the specific tapes he inherited, much as one can sell a paperback to a used bookstore or an LP to a music shop.

3. Either way, Haupt can't be held liable for copyright infringement that takes place after he sells the recording. (Yes, of course: If he went on to participate in some sort of infringement after the sale, he'd be on the hook for that. But he wouldn't be held liable simply for selling it.) The NFL's claim to the contrary is, in Post's words, "just bluster, the sort of nonsense that we see all too frequently these days from copyright owners."

Enough about the law; how about the recording itself? I haven't seen it, but based on the Times' description, I want to:

The recording is a relic that shows the signs of exposure to the heat and cold in the attic in Shamokin. Colors fade in and out. The picture is grainy and skips. And it suffers somewhat from [Haupt's father's] decision to stop or pause before most commercial breaks and hitting play when the break ended, which caused him to miss parts of the action when play resumed. The stops and starts give the tapes an occasional herky-jerky feel.

And more important, he did not tape halftime and about half of the third quarter.

"It's like he thought he would run out of tape," Troy Haupt said.

But it is still a viewable document, a vintage broadcast by CBS….A 1960s sensibility is preserved, helping to separate the tape from the NFL Films reconstruction.

Each replay is labeled "Video Tape" and each slow-motion shot is noted as "Slow Motion." The effect continues with network promos; an ad read by [CBS sportscaster Jack] Whitaker (United States savings bonds that were recommended by President Johnson) and the commercials Haupt did not cut out (like the anchorman-like announcer promoting the taste and other benefits of True cigarettes).

As the game entered its final seconds, Whitaker started to count down. "Nine, eight," he said, and the game ended. A marching band ran onto the field. It played "Seventy-Six Trombones."

NEXT: '[Jeff] Spicoli understands the United States Constitution better than [Sean] Penn'

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  1. They do love to talk about that “Heidi game.” All dads also have a love affair with Archie Manning.

    1. I was born almost exactly 9 months after the Heidi game.

        1. The worst part is I know my parents were watching it.

          1. Well, maybe not ALL of it.

    2. I actually have a vague memory of the Heidi game.

  2. Not entirely OT:

    Taxpayers would help pay to move Cleveland Browns training camp to Columbus via underhanded plan

    The Cleveland Browns and the Columbus business community want Greater Cleveland taxpayers to help pay $5 million for the Browns to move their training camp to a site on or near the Ohio State University campus.

    This outrageous request was quietly added to a list of projects the Columbus Partnership wants funded in the biennial state capital improvements bill, scheduled to be introduced in late March or early April.

    If you want to watch the Browns practice, you could always watch one of their games instead.

    1. Speaking of Cleveland… I’ll be in Cleveland next weekend. Any Reasonoids want to get together for a drink? Also, any Reasonoids want to sell a house/apartments in Cleveland? I’m a buyer.

      1. Warty has a basement you can rent…

        1. It puts the rent in the hand or else it gets evicted again.

      2. Where in the Cleveland area will you be? It’s safer here now that we are Warty free…

          1. You were spawning! We had to protect ourselves, and our world class theater district and world class orchestra. Bold measures had to be taken… it was either Pittsburgh or Detroit.

    2. But then the players are going to have a long drive when they want to go see a world-class symphony.

    3. Why would Columbus want the Browns?

      They already have a better football team in town.

    4. Speaking of the Browns, I heard they’ve released Johnny Football. I just hope Stephen Jones had the good sense to hide his old man’s cell phone to keep him from contacting Manziel’s agent.

  3. This reminds of me of the story from a few years ago when the NFL sent a cease and desist letter to a church who was charging admission to watch the Super Bowl in order to raise money because they were using the term “Super Bowl,” which is trademarked.

    1. Roger Goodell is a huge asshole.

      1. The absolute biggest in the world.

        http://www.bostonherald.com/sp…..nder_wraps

    2. they do a lot of that shit, which is why you see a lot of local stores’ advertising referencing “The Big Game” rather than the Super Bowl.

  4. “It’s like he thought he would run out of tape,”

    He probably did think that. Tape wasn’t cheap and you didn’t want to run out before the dramatic fourth quarter – or whatever.
    My grandfather’s 8mm films are of people standing around drinking and dancing at wedding receptions but he never filmed the ceremonies since everyone’s seen one of those and he didn’t want to waste film on them.

    1. CBS and NBC probably erased their tapes of the game for reuse because nobody foresaw home video technology was coming.

      1. ^This. There are apparently a bunch of lost Dr. Who episodes because BBC taped over them. Also, a lot of the original data from the Apollo program was overwritten.

        FWIW, those reel-to-reel 2″ (3″?) tapes were never a consumer format; they were a broadcast format. All consumer market VCRs used cassettes because of consumer reluctance to thread the tapes.

        1. Well, duh, VCR means video cassette recorder; VTR, video tape recorder, is the more general term. Sony did sell open-reel VTRs for home use, although they were expensive enough that they probably got more institutional than home use. My prep school got one, and one of its early uses was to indeed record a home game of football, which of course required a camera too. I don’t think Sony expected people to record broadcasts with them, so no TV tuner; they were conceived mostly as a substitute for home movies.

          Consumers were neither more nor less reluctant to thread video tape than they’d been with audio tape. Before there were cassettes, nobody thought much about that, but it did influence people’s decisions toward more re-recording on a reel of audio or video tape that was already in the machine, while cassettes made it easy to quickly pop them in & out for archiving or longer recording sessions.

    2. Yeah, it used to be pretty common practice for TV stations to reuse their tapes.

  5. It seems like selling the single “original” recording should be easier to defend legally as fair use. Copyright law is intended to protect from unauthorized reproductions, but this is a single film. Someday soon maybe the film canister itself will be a higher valued object than its contents.

  6. Worst human being: Roger Goodell, Me, Nicole, Hitler.

    Make your choice.

    1. You have three bullets and you’re locked in a room.

    2. I think you slotted yourself just about right.

    3. I was gonna ask why Warty wasn’t on the list but then I remembered he wasn’t really human

    4. Since Nicole is the worst, the only real question here is whether you consider her to be human.

      (I do not, but only on a technicality)

      1. I heard she was a mole on Warty’s neck.

    5. Nicole, Roger Goodell, you, Hitler. in that order.

      1. I can’t infer if this is ascending or descending.

    6. Being a proud racist does not make you bad person, it makes you a proud racist.

      1. My extraordinary racism is actually my most endearing quality

        1. Did I miss an epic racist tirade this week, or what?

          1. Look, if you haven’t been around enough to understand my hatred of non-whites and people from continental Europe (especially the fucking Krauts and Scandis) then it’s like you don’t even know me.

            1. If you want to understand my hatred of Scandis, this does a good job.

              “One of my earliest memories is of watching the Muppet Show, and happily laughing along to the Swedish Chef. Hur-de-ver-de-verd-e-verr, the Swedish Chef said. And I, not knowing any better, merrily repeated his dirty Scandi gutter-talk. “Hur-de-verd-de-verd-e-verr,” I said along.

              My Pappy walked in, agahst, and shook his head in disgust. “They’re goddamned trying to brainwash these kids,” he said. The next day, the television was gone, and in place of the tv was a record player and a bunch of Richard Pryor and Redd Foxx albums. “You listen to these guys,” my Pappy said. “They don’t truck with any goddamned Scandi luge-jockeys.”

              And so I learned my first lesson about the Scandis. I also learned a lot about The Man, freebasing cocaine, and having anal sex with prostitutes.

              Whenever we’d go to a restaurant, my Pappy would nervously look over both shoulders for Scandis, and then, if he didn’t see any, would sigh with relief. “Thank God,” he’d say. “Not many ‘Bjorns’ here. So the place won’t stink of herring.””

          2. I wouldn’t call it a tirade so much as a manifesto.

        2. I don’t agree with your deplorable racist thoughts, but damnit I can’t help but be impressed about how comfortable you are in just letting the world see the real you. If I had some of the thoughts you had I would probably feel compelled to institutionalize myself, or maybe even commit suicide. Not you, though. You just keep flying that freak flag proudly. It’s admirable.

    7. Based on grammatical inference, I’d say that combo is indeed the worst human being.

    8. I don’t follow hockey, but I’ve heard fans consider Bettman to be worse than Goodell.

  7. Ok. But can I sell my recording of the first Puppy Bowl?

    1. *roots around in desk drawer…finds $.39*

      Sure, I’ll buy.

  8. Needless to say, this does not mean that the law allows Haupt to make a bunch of copies of his recording and sell those. But it would mean he can sell the specific tapes he inherited, much as one can sell a paperback to a used bookstore or an LP to a music shop.

    Right. He’s selling a tape that happens to have a copy of the game on it.

    I’m sure that the legions of Quadruplex pirates are eagerly waiting….

  9. The ‘thou shalt not mention Super Bowl’ thing drives me insane. I’m going to claim rights to Big Game and see what they have to call it after that.

    1. Start your own sport, franchise it, and call the finals the Duper Bowl.

      1. The Competitive Deception League.

  10. He should sell the tape for $1,000,000.

    Not sure what’s on it… I’ll let the buyer figure that out.

  11. I’ve been shopping around my original broadcast recordings of all 18 episodes of Enos and no one seems to be making a stink about that at all.

    1. No one cares about your dick pics.

      1. Especially since they’re already out there for everyone to see for free.

        1. Oh there’s a cost to viewing them, trust me.

  12. Let’s say I’m filming a porn scene in my living room and the Super Bowl happens to be playing in the background, can I sell that?

    Asking for a friend.

      1. You are welcome to sell it. But neither you nor anyone else can play it in public. That would constitute a ‘performance’ and you’d need to get the NFL’s permission.

        There is actually a large literature on this topic in the copyright world. Well, not on porn scenes, actually, but on comparable cases:

        Folks made a documentary in which a boom box in the background was playing some random song (totally unrelated to the topic of the documentary) and the producers were sued by the owners of the song. The documentaries were never released because the authors couldn’t afford the license fees for the song. You can thank the RIAA for that.

        1. the owners of the song

          It was Biz Markie, wasn’t it…

    1. I would imagine that it would fall under the “fair use” if you only showed fleeting clips. Of course, the NFL’s lawyers will be all over you for that so you’d have to pay big bucks for defense even if you eventually prevailed.

  13. The NFL does not own the “game information.”

    Exactly. The NSA does.

  14. What’s not so fine is that the NFL is trying to keep Haupt from selling his artifact to anyone else.

    “Tell me again that story about how Copyright and IP exist to encourage innovation and invention and not rapacious taking of property by so-called ‘originators’, abuelita! I just love that story so much!”

  15. Here’s another recording you might find amusing.

  16. Why does it matter? It’s the fucking Packers. The team that, two years before, won the championship on a bad call.

    1. When it comes to sports, I’m of the opinion that whatever call the officials make is by definition the right call.

  17. But it would mean he can sell the specific tapes he inherited, much as one can sell a paperback to a used bookstore or an LP to a music shop.

    No it doesn’t.

    This is NOT a copy made by the copyright owner(s), it’s essentially no different that you selling a VHS copy of the Super Bowl XX you taped off the TV signal. You lawfully made the copy – for home use only not for re-sale. If it was a tape marketed by the NFL that one wanted to re-sell, then it is covered by the first sale doctrine.

    I think where Haupt has a case is that fact that neither the NFL nor CBS bothered to retain a copy of the game, they then cannot claim current copyrights to something they didn’t want copyrights to originally and essentially forfeited. Had they retained their original broadcast on their own tape, then they at least have something which could be copied.

    Legalities aside, some people would rather watch the Mystery Science Theater version of a movie than an unsullied version. The copyright owners of the original movie are not entitled to the value added by Mystery Science Theater – at worst the Mystery Science commentary would have to be sold separately from a “legit” copy of the movie and the end user would have to do his own playback setup syncing. Also, I would think a VHS pirate copy of a movie “videotaped by John Rocker at Times’ Square Theater” has its own value separate from the official release copy of the movie.

    1. But the interesting thing about this case is that the tape was recorded before the laws governing home taping were enacted. So there’s that.

      It might also be relevant to see if the NFL had, at the time the game was taped, a policy prohibiting fans in the stadiums from filming games.

    2. I think Haupt should go to court – and then charge the NFL’s lawyers $1,000,000 every time they want to look at the tape in the deposition hearing to see if they have a copyright issue with it. $5,000,000 if they want to play it in court.

  18. The NFL doesn’t own shit once the tape is outside the US borders. What’s to prevent him from selling it in a foreign country? Put an ad up on Craigslist Somalia and tell the NFL they are free to come over to his house and suck his balls.

    Jesus, why is it so hard for people to see the FYTW solution that’s right in front of their face.

    1. I think there’s some treaty issues that fuck up the obvious solution. That, and no-one outside of the US gives a shit about football.

      1. Are you kidding? Football is the number one sport in the world. Of course we call it soccer.

        1. I was talking about football the sport. Not that stupid soccer shit. Let me guess- you call deep dish “pizza”?

        2. Commie

  19. Not a lot of those machines left either. The last time we had to get one transferred there were only two places we could do business with.

    1. In the entire country?

      1. That were willing to us it to make a transfer. I’m sure others are kicking around. The problem with that sort of stuff is that mostly they were for studio use. Once they were obsolete, they were just chucked. No home market means no proliferation of machines. And who’s around to fix them or provide replacement parts?

      2. Yes, quite possibly in the entire country. While they were built like tanks, they do have some parts which wear, particularly rubber pinch rollers. I know a broadcast engineer who has one of those old reel-to-reels, but don’t know if it still works or is just a showpiece. By this time pretty much everything people want to keep has been digitized. The transfer business is well into the long tail – the only thing that needs to be transferred is random discoveries like this, not archival collections.

        FWIW, you can no longer buy a working card punch machine. I wanted one a while back for a project and there are none to be found.

    2. “OK, NFL. I’ll sell you the tape for $30K. You can rent my playback device for $1M per second.”

  20. … N.F.L. …

    W.T.F.?

    1. Leaving the periods out of abbreviations demonstrates a lack of moral fiber.

  21. The NFL could make a pretty penny with this. Pay the guy 20,000 a year for “archiving services” and they get to resell the tape to the major networks for millions.

    But this is the commissioner that gave us deflate gate and “integrity of the game” bullshit.

    If money were no concern to me and I was Haupt, I would publicly burn the tapes if the NFL didnt want to pay.

    /salty patriots fan

  22. The National Football League recently reconstructed the game from NFL Films’ original footage, and that aired on cable last month.

    And the NFL Network made the broadcast utterly unwatchable by (a) talking over it like lunatics and (b) inexplicably running it in slow motion.

    1. Can you run as fast now as you did 49 years ago?

  23. Its a shame he didn’t catch the commercials. Honestly, I’d be more interested in them than in the game itself.

    1. Yes. Particularly the cigarette commercials. Which may be one reason the NFL wants to memory-hole this.

    2. They were ordinary ones you could’ve seen on many other shows. Nobody produced them specially for that game.

      1. I figured as much. Don’t care. Would still love to see a collection of TV commercials from that era.

    3. If you check out BUZZR channel, which shows old game shows, you can still catch old product promos at the end of some of the broadcasts.

  24. Know why they started giving Roman numerals to Super Bowls? Because they weren’t confident the series would last long, or even that the original would be repeated. So the 2nd was dubbed “II”, like a sequel movie. Otherwise they’d’ve just noted them by the year, like every other championship final. The league championships preceding the interleague were never serially numbered, for example.

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