Are you ready for some football? (Copyright Department)

[UPDATED below - 2/4/16]

Richard Sandomir, in the New York Times, has a really interesting article here about the fate of the only known recording of the first Super Bowl TV broadcast.

It's worth pausing for a moment just to appreciate the significance of the remarkable fact that the world apparently contains but a single copy of that historic broadcast. It's a nice little illustration of how far we have traveled, sociologically and technologically, in the past 50 years. Both CBS and NBC - both of whom (oddly enough) televised the game - seem to have lost or destroyed their master copies of the live broadcast (or, perhaps, never made such copies in the first place, which was a startlingly common practice in the days of yore).

And, of course, in 1967 there were no reasonably priced commercially available VCRs. Recording equipment necessary for the task was something only a professional studio could afford.

But somehow, and for unknown reasons of his own, a guy named Martin Haupt, in Shamokin, Pa., got access to a professional-grade Quadruplex reel-to-reel video recorder and recorded the broadcast onto two reels of Scotch 2-inch recording tape. Into Haupt's attic they went, until they were rediscovered a few years ago by his son, Troy.

He offered to sell this copy to the NFL for $1 million - the NFL countered with an offer of $30,000. Seems like a low-ball offer to me for a pretty significant piece of football history, but it's their money, I suppose, and they can do with it what they want.

But here's where things get interesting - at least, to a copyright lawyer. Sandomir's article continues:

A League Warning

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. He would like to persuade the league to sell the tapes jointly and donate some of the proceeds to their favorite charities. … "They're not doing anybody any good sitting in a vault," he said. "Let's help some great charities."

But that is unlikely to happen. A letter from the league to [Haupt's lawyer] 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. . . .

[U]ntil the league and Haupt resolve their differences, the public will never see the game as it happened, on the winter day when Green Bay became the champion of the N.F.L. and A.F.L., and Martin Haupt took a mysterious route to recording history.

Much of that (especially the portion I italicized) is simply incorrect. It may well be true that the NFL owns the copyright to the broadcast footage. [NBC and CBS, actually, probably were originally entitled to claim ownership in the copyright, but I can believe, and am willing to assume, that they signed their copyright over to the NFL.]

But that does not mean that Haupt can't sell his copy to anyone willing to buy it. Copyright law distinguishes - quite fundamentally - between the copyrighted content of a work (in this case, the audio commentary and the visuals constituting the broadcast) and the physical, tangible object in which the work is preserved - the "copy" (in this case, the two reels of tape). And Haupt, as owner of the "copy," is permitted to sell that copy to whomever he chooses without the copyright owner's permission because of the so-called "First Sale Doctrine" in copyright law:

"[T]he owner of a particular copy lawfully made under [the Copyright Act] … is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy …" (17 USC 109)

There is, I suppose, an argument that Haupt's copy wasn't "lawfully made under the Copyright Act" - that it was, at the time it was made, itself an infringement of the NFL's copyright in the broadcast (and that, as a result, the First Sale Doctrine doesn't apply).

In my opinion, though, that's a pretty weak argument; the Supreme Court expressly held, in the Sony v. Universal case (464 US 417) in 1984, that making a recording of television broadcasts off-the-air for later viewing was a "fair use" of the copyrighted content in the broadcast. It's not free from doubt, to be sure; among other problems, a 1984 case construing the 1976 Copyright Act has a somewhat uncertain application to events taking place in 1967. But I'd much, much rather be arguing Haupt's side of that case than the NFL's, if it came to that.

And I respectfully suggest that Prof. Balsam gets her copyright law wrong (or was misquoted) when she says that "the law favors the league" and that "the league technically has is a property right in the game information and they are the only ones who can profit from that." The league doesn't have a property right in "the game information" at all. [There's another case squarely on point that discredits this idea, too - NBA v. Motorola from the Second Circuit (105 F.3d 842, 1997)]. The "game information" - who won, who lost, how many passes Bart Starr threw, how many time Kansas City ran running plays, the sequence of plays that led to Green Bay's final touchdown, etc. etc. etc.] - is not protected by copyright at all; only the broadcast is protected. And there is nothing in copyright law that says that only the NFL can "profit" from that - Haupt is entitled to get as much money from selling his copy as he can.

As for the league's bluster -

"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, 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"

that is indeed just bluster, the sort of nonsense that we see all too frequently these days from copyright owners.

Suppose Haupt sells his copy to someone - the Museum of Broadcasting, say - and the museum arranges a public showing of the tape's contents. That might well constitute an infringement of the NFL's copyright; the First Sale Doctrine excuses the sale of the copy, but it does not excuse the "public performance" of the content on the tapes.

So the NFL might well have a copyright claim in those circumstances against the museum. But not, under the ordinary rules for determining liability in these circumstances, against Haupt. It's just like if I sold you my (lightly used) DVD of NFL Film's "Super Bowl XXXXV Highlights" and you arranged for a public performance of same. You might well be liable for that infringement, but I'm not (unless I had some control over your behavior, or knew about and "materially contributed" to that performance, or gained a specific financial benefit from it).

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UPDATE: My friend Michael Madison at Pitt Law School reminds me that this is not the first time something like this has happened. A few years ago the only known recording of the broadcast of Game 7 of the 1960 World Series - which, like World War II or the fall of the Berlin Wall, represents one of the great triumphs of Good over Evil in human history, as the lowly Pirates vanquished the mighty Yankees on a walk-off 9th inning home run by Pirate second baseman Bill Mazeroski - surfaced. The recording had been made by none other than Bing Crosby, who was part owner of the Pirates at the time (and who made the tape because he was too nervous to watch the game in real time). [See here and here for details]

The legal claims to the recording and its content appear to have been resolved by transferring everything to Major League Baseball, and it is now freely available for purchase.

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