Ridiculous Copyright Fight Still Keeping The Only Video Of The First Super Bowl Locked Up
from the because-copyright dept
We first wrote about this issue in 2014, but the only known video recording of the very first Super Bowl only exists because a fan taped the TV broadcast, back in 1967. Now, as we're about to have the 50th Super Bowl, the fight has not only continued, but according to a NY Times article, the fight has been getting nastier.That NYT article also, for the first time, names the guy who has the tape: Troy Haupt, whose father went into his office and recorded (most) of the game, believing such a tape might be valuable some day. For the past few years, all anyone knew was that a lawyer named Steve Harwood claimed to represent an anonymous client whose father had taped the game. The game itself had been shown on both CBS and NBC, but back in those days, archiving stuff wasn't a big deal, and neither broadcaster kept a copy of the tape. It wasn't that long before people realized that might be a mistake and by then there was nothing left (as far as anyone knew), and many argued that it was one of the great "lost treasures."
It was only after a 2005 Sports Illustrated article that talked about the fact that the video was lost, that a friend had reminded Haupt of the video in his mother's attic. And, then, of course, came the copyright fight. The NFL (as it has a habit of doing) insisted that it, and it alone, held the copyright on the video, and Haupt would be infringing on its copyright if he tried to do anything with the video. Of course, Haupt and his lawyer still held the physical tape (which they had restored by the Paley Center, and stored in a place to keep it safe). And thus, we get to the difference between the copyright on the content, and the ownership of the physical item.
Haupt asked the NFL for $1 million for the tape -- the price that Sports Illustrated had estimated such a tape might be worth. The NFL offered $30,000. And then there was a stalemate, with neither side budging for years, and the NFL constantly threatening a copyright lawsuit should Haupt do anything with the tape. With the 50th anniversary, Haupt thought that maybe the NFL would finally be willing to deal... but instead, the NFL showed a totally different video of Super Bowl 1 that was not the video of the actual broadcast. Instead, they went out and found a large number of "clips" from other sources, and patched it all together, claiming it's the entire game, even if it appears really disjointed.
Apparently, now that the NFL (which makes billions) has its "tape," it wants to be even more ridiculously petty towards Haupt. According to the NY Times:
And last week, Haupt was angry about another turn in the dispute. CBS backed out of a plan to interview him for a Super Bowl pregame segment that would have used a few minutes from the game. It had agreed to pay him $25,000 and give him two tickets to the Super Bowl. A producer was preparing to watch a restored, digital copy of the game at the Paley Center. A crew was ready to go to Manteo. He was going to tell his story, and perhaps the league would listen.Just when you think the NFL can't get more petty, it does exactly that.
“It was my right to tell my story, and they were paying me for it,” Haupt said.
But according to his lawyer, Steve Harwood, the deal collapsed when he was told that the N.F.L. had ordered CBS not to pay him.
Even more bizarre is that according to the NY Times, the NFL is insisting that Haupt isn't even allowed to sell the physical tape to someone else:
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.....This is bullshit, and hopefully Haupt's lawyer has explained to both Haupt and the NFL that this is bullshit. The First Sale Doctrine still exists in the US, and it's the reason that you can sell a copy of a physical book or painting without first getting permission from the copyright holder. The First Sale Doctrine separates the copyright from the tangible thing. So he absolutely can sell the tape, despite what the league and the article claim. Updated update: So I had originally crossed out this paragraph and thought maybe I'd gone too far with it, after someone pointed out that First Sale might not apply, because the first copy wasn't legally purchased. But as a few others have commented (both below and in email), that may not matter. The question is whether the work was "lawfully made" under the Copyright Act... and we know that taping video off the TV is considered okay under the Supreme Court's Betamax ruling. Thus, the first sale right could very well apply here.
But, even then, the NFL seems to make bogus copyfraud arguments, saying that if he does sell the tape, and the contents leak somehow, Haupt would be liable for any such release.
But that is unlikely to happen. A letter from the league to 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.”Again, it's not clear that this is true. The purchasing party may very well be liable for any infringement that results, but Haupt should be in the clear once it's sold, so long as there's no evidence that the sale was simply a sham to get the video released. Bizarrely, the NY Times quotes a copyright law professor claiming that the NFL is actually correct here:
The law favors the league, said Jodi Balsam, a professor at Brooklyn Law School.As David Post notes at the Washington Post, Professor Balsam is either woefully misinformed or was misquoted, because of course, you don't get to copyright "game information" at all. Merely the specific expression which was the broadcast. In fact, cases revolving around data (such as scores) and factual information (such as names and stats) have come down quite clearly saying that the league does not own "game information."
“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.
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.There's also a separate issue that I haven't seen reported anywhere, which seems like it should be relevant. The game was in 1967, which was under the 1909 Copyright Act, which required registration ("formalities") in order to get the copyright. And, while it's quite likely that CBS and NBC, who both broadcast the game, likely had a deal in place with the NFL where the NFL retained the copyright, there's a question of whether or not the NFL actually did register that copyright in the first place. It's entirely possible that, given the fact that no one actually thought it was worth keeping a copy of the video, that similarly no one thought it was worth it to register the copyright.
And that leads us to the final point. The NFL itself apparently couldn't have been bothered to keep a copy of the video of the game itself, which is what makes the resulting situation particularly egregious and ridiculous. To claim ownership over the thing that you totally neglected to the point that you thought no longer existed seems ridiculous. It also raises the question of whether the NFL abandoned the copyright, even if it did register it. Copyright abandonment is a defense that someone accused of infringement can make, arguing that the copyright holder deliberately abandoned the work (leaving it in the public domain). Abandonment can be tough to show, however, since it requires showing that the copyright holder intended to abandon the copyright and performed an "overt act" to make it happen. You can argue that the intent was there in the failure to keep a single damn copy -- but is that an overt act? Usually the "overt act" is seen as something like a declaration that the work is in the public domain. That obviously doesn't exist here.
But, still, hopefully in the end people can recognize just how messed up copyright law is that it would reach this kind of stalemate, in which the public is deprived of such a historic event.
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Filed Under: copyright, first sale, first superbowl, locked up, steve harwood, superbowl, superbowl 1, troy haupt
Companies: nfl
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If we can't have it, no-one can
That is just taking vindictiveness and pettyness to whole new levels. 'Either sell it to us on our terms, or be sued into the ground if you try and sell it to anyone else'.
What's even worse is the fact that it doesn't matter whether they actually have a legal leg to stand on here, as the odds of a judge being willing to award Haupt legal fees should he sell the tape anyway and the NFL sues is likely pretty low, so any money he'd get out of the sale would likely be burned through from defending himself in court even if he won, something I've no doubt the NFL considered with their threat.
Like many examples from the legal system, you don't have to have the law on your side to win, just more money than the other person.
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The NFL should pay him for his service of preservation. Nothing else.
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That's a good point, actually... will add something to the post.
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He should sell it to someone in another country who will stick the game up on the Internet for everyone to watch.
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No, that's not quite right. Here's the pertinent language from the statute:
The person who made the copy owns it, so it doesn't need to have been sold to him. The question is whether it was lawfully made. This is actually a very interesting question which has never really been answered.
For example, if you make a copy for time shifting purposes under Sony and fulfill the fair use requirements, that is lawfully made. Can you then sell it? While it might be relevant for the fair use analysis whether you planned to sell it at the time you made it, does it matter if you only decided to do so after it was made?
Even assuming the original broadcast was copyrighted (which might be a state issue that I don't want to wade into) it might be legal to sell this copy. Not to make more copies necessarily, but to sell the actual tape or whatever it is.
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But my argument involved fair use, which assumes that it was copyrighted.
Nowadays, under statutory fair use, that a work is unpublished doesn't preclude fair use (if it did, Sony would go out the window, or it would stand for the proposition that broadcasts to the general public are publication), but it's difficult to say whether it would've precluded fair use in the 1960s under common law fair use, particularly if you're asking a modern day court to try to decide it.
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H.R.Rep.No. 94-1476, p.138(Extract stops at end of page, but analysis of this section continues on p.139.)
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• We're not dealing with phonorecords in this particular situation.
• Neither are we dealing with §301(c)'s “sound recordings fixed before February 15, 1972” in this particular situation.
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"...which assumes that it was copyrighted, which is unclear for two reasons. First, because, at least according to the Times article, it isn't clear whether the author of the work, in this case the TV network, made a copy. Since the Constitution limits copyright to 'writings' a purely live broadcast (not at all uncommon back in the day) could not be copyrighted. For most TV programs, this wasn't a big deal; scripts could still be copyrighted, for example, but obviously that wouldn't fly for sporting events. Second, because it's unclear whether or not the broadcast would qualify as publication, and if published, it needed to bear notice, which it might not have had. Your quote above isn't super helpful, as it admits that public display (and presumably performance, there's no meaningful difference here) can be publication under some circumstances and can not be publication under others. While the irrelevant part starting at the 'See American Tobacco' mark indicates that a tacit or implied understanding about there being no copying might cause the performance not to be publication, there pretty certainly was no such understanding for a broadcast back in the day, as it was likely not imagined that anyone in the nationwide home audience would even have the ability to record it."
If you need more hand-holding in the future, it doesn't bother me.
“Common law fair use” under Pennsylvania law?
Common law fair use because fair use has been a part of federal common law since 1841, and was not codified into the form we now know it as until the 1976 Act. If it is necessary that the taping be a fair use in order for the tape to have been lawfully made -- and as noted above, if the broadcast was not copyrighted, fair use needn't apply -- then it was common law fair use that was in effect at the time. Then the immediate question is, does a court try to apply the fair use standard that was actually in effect then, which will have to be sussed out from the caselaw of the day, or does it go ahead and apply modern fair use precedents retroactively, aside from anything that is only present due to codification? It's not unknown for courts to do this sort of thing in civil common law cases, and Sony would make it real easy.
As for mid-1960's Pennsylvania state copyright law issues, I don't even want to wade into such a briar patch unless it's unavoidable. Which is again why my preferred way of disposing of this case would be to find that the broadcast was copyrighted under federal law, but that the making of the tape was a fair use under federal law, which means that the tapes are lawfully made and can be resold now under section 109. This doesn't help to get the taped broadcast available for everyone to see, but it's better than the ridiculous status quo.
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So, can you get to “lawfully made under this title”, if the tape was made before the current § 109 was enacted —and made unlawfully under Pennsylvania law?
Or if the tape was made contrary to the law of some other state? I don't know which state Martin Haupt actually worked in, before the tape was stored in an attic eight years after its creation.
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I've been looking at a number of the CATV and other retransmission and public performance cases. In at least one case, post 1978, the accused infringers did claim that they were receiving the network feed from the satellite before commercials were added and that second feed recorded by the network for copyright purposes. The court found that technical fact irrelevant under the 1976 act.
Under the 1909 act, would it matter if the live feed was broadcast, and the network made their copies from essentially the same feed as the accused copy? If two people make the same motion picture (other than a photoplay) using the same camera, and the same lens, at the same time, but each using different film…?
“(1) ownership of a valid copyright, and (2) copying …”
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What for? It was publication without notice that dumped a work into the public domain. Failure to register was not good, but also not fatal for the original term, and being from 1967, it wouldn't've needed to renew due to the 1976 Act.
The Sports Illustrated bit claims that the networks made a kinescope
Okay, this means it is a writing. The remaining questions are 1) whether under federal law under the 1909 Act it was published (and if so whether as a factual matter it had notice); 2) if it was not published, whether it was protected by Pennsylvania state copyright law at the time; and 3) if it was published with notice, or unpublished (as publication without notice means public domain), whether the taping was fair use. Note that federal fair use precedents at least as of the time of the taping, and maybe later, should apply as fair use is based to some extent in the First Amendment.
Or if the tape was made contrary to the law of some other state? I don't know which state Martin Haupt actually worked in, before the tape was stored in an attic eight years after its creation.
Further research indicates that he made the tape in Pennsylvania. He worked at a business called Forgflo in Sudbury, PA. The firm repaired commercial video recorders used in the TV industry. He apparently made tapes of tv broadcasts all the time as a part of his job, to test the machines. It's possible that he viewed this as being a chance to clock in some time at work and watch football and get paid for it, and then kept the tape. He's long dead and doesn't seem to have told anyone his motives, so we can only guess.
Under the 1909 act, would it matter if the live feed was broadcast, and the network made their copies from essentially the same feed as the accused copy?
Same camera ought to do, unless the claim of copyright is premised entirely on editing that differs between the copies. However the NBA case mentioned elsewhere in this thread suggests that it might not have been copyrightable at all at the time. I think the 1976 Act got it right on that front but that's not helpful for this unusual case.
Before Betamax, as early as 1965, Sony manufactured other videotape recorders — some of them
Sure. Ampex had videotape recorders out in 1948. But only a handful of people had the money and interest in having one personally. (Such as Bing Crosby, but he was an early investor). The consumer market didn't really kick off until the mid-late 70s. It's like how you could buy a home computer before about the same time, you just needed a hell of a lot of money.
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Additionally, if a federal copyright was obtained in an unpublished work under the 1909 act, did that extinguish state copyright? (I thought I knew that answer to that, but now I think I may have been mistaken in that belief. Would it have extinguished a state unfair competition claim? Or breach of duty? or confidence?)
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Copyright enactments: laws passed in the United States since 1783 relating to copyright, p.137
Section 11 in Patterson became codified as section 12.
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Photo-Drama Motion Picture Co. v. Social Uplift Film Corp (2nd Cir.1915): 448 449 450
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From the New York Times article:Unless you can point to non-mandatory federal registration under §§ 12 & 13 of the 1909 act—or if you're arguing general publication.
Judge Ferguson in Universal v Sony (C.D.Cal.1979) found:But I'm not seeing anything in there about Pennsylvania law.
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For example, if you make a copy for time shifting purposes under Sony and fulfill the fair use requirements, that is lawfully made. Can you then sell it? While it might be relevant for the fair use analysis whether you planned to sell it at the time you made it, does it matter if you only decided to do so after it was made?
Even assuming the original broadcast was copyrighted (which might be a state issue that I don't want to wade into) it might be legal to sell this copy. Not to make more copies necessarily, but to sell the actual tape or whatever it is.
Yeah, after thinking this through... I think I'm back to this position that the first sale claim isn't so crazy. I've updated my update...
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As an aside, the nuances of first sale are why the AHRA was changed in drafting (apparently at the behest of the RIAA and without the knowledge of Congressional staffers who normally do this work at the direction of Congress) so that making copies under the AHRA is a non-actionable infringement (that is, illegal but not grounds for a lawsuit) rather than the original plan of simply being non-infringing.
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Assuming an over the air broadcast, the price was consuming the commercials from advertisers who paid NFL to broadcast it. They were paid. End of story.
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Peanuts
Personally, i don't give a damn about american football, but if i was an institution that made a living profiting from the passion fans have for a game, i'd certainly try to acquire the only known recording of part of my history.
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/s
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Super Bowels. Eww.
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And in a nutshell, everything wrong with copyright today.
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Come watch the burning of the ONLY copy of the first Super Bowl!! Only $1000 per ticket... cheaper than watching a Super Bowl!
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Brilliant plan.
Then we get to watch the Law taking the tape into protective custody on behalf of the NFL, while the tape's owner gets hauled to court on charges of attempted blackmailing.
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"I had the tape in my car b/c I wanted to watched it at home. I stopped for a bite to eat and someone broke into my car..."
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Valid Copyright
In 1967 you had to register your copyright within 28 years, which was what you had for your first registration length. You could then renew the copyright at the end of 28 years for additional time. The 1976 copyright act removed the need to renew your copyright registration and extended the length of time for recordings from 1967, but left the original requirement to be registered within 28 years of creation. So the question becomes did somebody register the copyright of the recording between 1967 and 1995?
I started looking through scanned copyright registrations with 1967 and made it through a few years before I just gave up, but I never did find any registration in those first few years.
If anybody wants to dig through scanned images from 1967-1978 and then search through the digitized records from 1978-1995 here is the link:http://www.copyright.gov/records/
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I do know that the courts changed their minds on this issue with respect to radio broadcasts.
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Estate of Martin Luther King, Jr v CBS (11th Cir. 1999)I've omitted citations in this extract, but the footnote is worth emphasis—
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HOW is copyright done?
Who has a RIGHT to copy protect the video..
NBC, CBS, NFL?
NBC and CBS dump the video..Lost it..Threw it away..
Why didnt the NFL, ASK for a copy?? or the original??
HOW is copyright done for the Corporation?? By Broadcast or by the OWNING of a copy of the video??
IF the original was Erased...AND they needed to pay for Copyright, and DIDNT.. Is there any claim to Copyright?
This reminds me of What happened to the 'Doctor WHO' series..300 Lost episodes..They searched the World for Copies..and HAPPY to find that people HAD made copies of most of it..
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And nothing of any value was gained. Dr. Who: worst SciFi ever.
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/hates we can't fix stupid.
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I'm confused..
If neither the NFL or Mr.Haupt registered the required 28yr copyright on the 'tape' AND the NFL cannot own the contents of the tape, how in the world is this even a fight?
either;
"This telecast is copyrighted by Mr. Haupt for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the Mr. Haupt's consent is prohibited."
simply replace NFL with Mr. Haupt on the NFL's bullshit claims they spew during any televised game.
or:
Shouldn't this tape be in the public domain?
'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.', remember?
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Re: I'm confused..
There is no copyright on "the tape." The tape is a COPY of a copyrighted work. The "NFL" (or maybe CBS/NBC) owns the sole exclusive right to make copies of the Broadcast of the first Superb Owl. This guy('s dad) made his OWN copy for preservation purposes under a "loophole" in the law that allows you to make copies for personal use.
If it worked the way you allege, then I could have gone into a theater and cammed a copy of Steamboat Willie, not renewed copyright on my illicit copy, and my copy of Steamboat Willie would be in the public domain even as Disney was jealously protecting theirs.
That said, the NFL should pay the man. They can make way more than a mil off this.
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Under the 1976 Act today, I'm pursuaded by NBA v Motorola (2nd Cir. 1997), that the underlying sports event is not copyrightable subject matter:(Footnote omitted.)
That reasoning is specific to the 1976 Act. Congress changed the language in that 1976 general copyright law revision from the former language of the 1909 Act (as amended), which read:See House Report 94-1476:Nevertheless, it seems clear to me that the reasoing of NBA v Motorola applies to the 1909 Act.
Sports events, as such, are not the writings of an author.
That does not exhaust the issue, of course. Motion pictures of live sports events might still be copyrightable subject matter, following the line of cases which begins with Burrow-Giles Lithographic v Sarony (1884).
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No matter whether it is a photoplay or not, that cartoon would seem to be at least similar to a dramatic work. It has authors.
Further, it was fixed as a motion picture before distribution to theatres and exhibition to the public.
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This occurred in 1967. Let's repeat that, 1967. Unlike now, it wasn't possible to accidentally lose your recordings because you updated your computer systems, or switched to another IT provider, or even because the file happened to be in a folder you deleted. None of those were possible in 1967 because the recordings weren't on computers. They were on tapes. Not those pansy VHS tapes either, these were big.
The only way to get rid of the recording in 1967 was if you very deliberately walked over, picked it up, and carried it over to the dumpster. And I'm really not sure how much more overt you can get.
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Juice worth the squeeze
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Re: Juice worth the squeeze
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Are you saying they can't make that sale now because he did? Let them sell it first then.
Are you done selling your copies? Okay I am selling mine now.
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Prostitute
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IANAL, or anything else now.
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It is a huge mistake to confuse the requirements of the prior, 1909 Copyright Act with either the requirements of the 1976 act for new works, or the requirements of the 1976 for works originally granted copyright protection under the 1909 act.
In addition, for unpublished works created prior to the 1976 act, some states may grant protection under state law.
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NBA v Motorola (2nd Cir. 1997)
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1909 Deposit Requirements
§ 5. Classification of works for registration
§ 12. Works not reproduced for sale
§ 13. Deposit of copies after publication; action or proceeding for infringement
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Copy in Copyright Office?
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Copyrightable subject matter under 1909 act
In particular, were the performances of atheletes on the field considered “the writings of an author” (§ 4) ?
Did a live television broadcast belong to the class of “motion pictures other than photoplays”, or any other enumerated class in § 5 ?
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Kinescope
Wikipedia:
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That's nonsense. You can't "record over" 16-mm film once it already has something on it.
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Archival
But just like we have the power to archive it, so too do we have the power to destroy it. Proprietary/obsolete formats, anti-circumvention clauses, copyright... All working to ensure anything we do could be destroyed and lost permanently at any moment.
Why, in a time such preservation is possible, is greed still the main focus? Neither party in this dispute seems to care about history, only the money they can make from it.
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The Super Bowl III Problem
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Are these rules universal?
I would bet someone that is willing to pay top dollar for that video has a yacht that they could take out for an afternoon.
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First sale, yes.
Don't. If he taped it off an on air broadcast, he paid for it by "consuming" the commercials. They were giving it away, paid for by the advertisers who paid them to air it. They've been compensated. It's their own fault they made a stupid deal. Cash is not the only thing worth monetary value. Ask the advertisers.
The NFL gave it away considering, at the time, a copy of it was worth nothing. They defined its value at outset. That he found a way to make what they defined valueless worth something gives them no right to stick their nose into his business.
Ridiculous is right.
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If you try to discriminate your public or downright decline to spread the work, you should lose the copyright. And if you are simply not able to, for example because you never cared enough to keep a sample to copy from, then you also loser the copyright.
Basically, nobody should have a legal way to block the spread of a work, so such blocking should only occur when one is trying to spread the work himself. (Please note that, in this legal frame, an unfair price - but constant across all markets - would not be considered blocking. It would only be a stupid way to do business.)
That would not be an answer to all the problems of copyright, but it would at the very least address the availability issue.
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Mike, you were right the first time ...
Here's what the House Report accompanying the 76 Copyright Act said:
"To come within the scope of section 109(a), a copy or phonorecord must have been "lawfully made under this title," though not necessarily with the copyright owner's authorization. For example, any resale of an illegally "pirated" phonorecord would be an infringement, but the disposition of a phonorecord legally made under the compulsory licensing provisions of section 115 would not."
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Copyright? What about embarrassment instead?
- Where's the two hour long halftime show with lights and fireworks and wardrobe malfunctions?
- Maybe they don't want to admit that they took money from advertisers who are the competition of current or recent ones.
- Or, maybe there's a shot of one of the linemen taking a bad head and neck jarring hit who's currently suing the NFL, and this would bolster their case.
There are endless alternative possibilities when looked at this way.
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Don't sell it, transform then give it away
Completely transformative, no money being made, and since the NFL has no market for this particular video, there is no market to impact by its release. Although just to be safe, I'd release it to bittorrent and to servers outside the US, and would not be the actual person who did the work or release it.
With that being the only copy of Superbowl 1 on the net, how valuable would the NFL suddenly find a clean copy?
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I'll bet $1 million that there are a thousand people out there willing to pay him $1 thousand just to sit on his couch to shoot the breeze and watch tv, even though he only plays digitized versions of old tapes.
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