Quinn Rhoda Exam Number: 2815187

Super Bowl-ies? :

An Analysis of the NFL’s Overzealous Intellectual Property Protection for the Super Bowl

Introduction

The National Football League’s (NFL) championship game, the Super Bowl, is the

premier sports entity in the United States. Since the Super Bowl began in 1967, the now

international spectacle, has grown to new heights.1 The Patriots’ 28-24 last second victory over

the Seattle Seahawks in Super Bowl XLIX drew an average audience of 114.4 million viewers,

making last year’s game the most watched broadcast in U.S. television history.2 Furthermore,

last year’s Super Bowl XLIX was broadcasted and viewed in 180 countries in 25 different

languages.3

As the NFL prospers globally, not everyone can reap the benefits of the Super Bowl.

This is due mainly in part by the NFL’s intellectual property rights in accordance with the Super

Bowl. First, the NFL’s registered trademark of the “Super Bowl.” The NFL has taken extreme

measures in protecting their mark, forcing companies and advertisers to use euphemisms such as,

“The Big Game,” when referring to the Super Bowl. This limitation has brought about tension

and litigation between the NFL and businesses in regards to potential brand dilution. Part I of

this paper will discuss the competing interests of the NFL and advertising businesses, in

particular, the nominative fair use doctrine as applied to the use of the term and trademark

“Super Bowl” and its effects on the NFL, businesses, and consumers.

1 Super Bowl History, NFL.com, http://www.nfl.com/superbowlhistory (last visited November 29, 2015).2 Super Bowl XLIX posts the largest audience in TV history, money.cnn.com, http://www.money.cnn.com/2015/02/02/media/super-bowl-ratings/ (last visited November 25, 2015).3 How Many Countries Will Watch The Super Bowl?, ibtimes.com, http://www.ibtimes.com/how-many-countries-will-watch-super-bowl-1799734 (last visited November 25, 2015).

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Second, Copyright Law has allowed for the NFL to further protect itself through

broadcasting rights and restrictions. It is evident that one means strict business, when you sue a

church to minimize Super Bowl party efforts. That is exactly what the NFL did in a famous

lawsuit surrounding the Super Bowl and Copyright protection. Moreover, a problem with old

Super Bowl footage, will further help cover the scope of the NFL’s copyrights on their big game.

The issue at question in these scenarios is a function of the right of copyright holders to limit the

public performance of their works.4 Part II of this paper focuses on the copyright issues that

arise in certain Super Bowl party instances.

I. THE “SUPER BOWL” TRADEMARK

The Super Bowl is the marketing crown jewel for the NFL, but to enjoy all the benefits

the NFL wishes, they must protect their trademark for the event. This section will address the

overzealous protection of the “Super Bowl” trademark, as the NFL attempts to monopolize

certain terms and phrases to protect themselves from the businesses they see as parasites to their

event and their profit. The actions of the consumers and businesses will be analyzed under the

scope of the Nominative Fair Use doctrine of the Lanham Act, applying the use of the term

Super Bowl and its creative “synonyms” to consumer and business benefit, and brand damage to

the NFL.

A. Trademark Infringement Overview

A trademark is defined as “any word, name, symbol, or device or any combination

thereof adopted and used by a manufacturer or merchant to identify and distinguish his goods,

including a unique product, from those manufactured or sold by others.”5 Under the Lanham

4 American Broadcasting Companies, Inc v. Aereo, Inc., 143 U.S. 2498 (2014).5 15 U.S.C.A. § 1127

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Act, the primary federal trademark statute of law in the United States, there are two fair use

defenses, regular fair use and nominative fair use. Here, we will be strictly analyzing nominative

fair use.

To prevail on a claim of trademark infringement a plaintiff must establish that their mark

is valid and entitled to protection; and that the defendant used the same or a similar mark in

commerce, in connection with the sale or advertising of goods or services without the plaintiff’s

consent.6 The plaintiff must show that the defendant’s use of the mark is likely to cause

confusion as to the affiliation, connection or association of the defendant with the plaintiff, or as

to the origin, sponsorship, or approval of defendant’s goods, services or commercial activities by

the plaintiff.7

A valid trademark becomes protectable after it is used in commerce. Further, a plaintiff

can prove trademark validity by showing that the trademark is registered. An owner of a

trademark may obtain a certificate of registration issued by the United States Patent and

Trademark Office (USPTO) and may submit that certificate as evidence of the validity of the

trademark.8 This creates a legal presumption of the validity and ownership of the mark as well

as, of the exclusive right to use the mark nationwide on or in connection with the goods or

services listed in the registration.9

Use of a trademark by an alleged infringer must be established as a threshold matter. The

use requirement serves a limiting function by preventing trademark holders from asserting a

generalized right to control language.10 Furthermore, the use must be in commerce.11 To satisfy

6 15 U.S.C.A. § 1114(1)(a)7 Id.8 15 U.S.C.A. § 1115(b) 9 Id.10 See 1-800-Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d. Cir. 2005)11 15 U.S.S.A. § 1114(1)(a)

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the “in commerce” requirement, the plaintiff must demonstrate that the allegedly infringing

activities have a substantial effect on interstate commerce, such as, advertising by the alleged

infringer in more than one state.12

Likelihood of confusion is the central focus of any infringement claim. A likelihood of

confusion exists when consumers viewing the allegedly infringing mark would probably assume

that the product or service it represents, is associated with the source of a different product or

service identified with a similar mark. Courts conducting a likelihood of confusion analysis

apply a different standard to directly competing goods, as opposed to non-competing goods.13

The court will likely find infringement if the two marks at issue are sufficiently similar that

consumer confusion can be expected. If the goods in question are completely unrelated,

confusion is unlikely and infringement will generally not be found.14

B. Nominative Fair Use

Nominative fair use is a specific type of fair use under trademark law that provides an

affirmative defense to trademark infringement, where a person may use the trademark of another

as a reference to describe the other product, or to compare it to their own.15 Nominative fair use

defense provides that one party may use or refer to the trademark of another if: (1) the product or

service in question must be one not readily identifiable without use of the trademark; (2) only so

much of the mark or marks may be used as is reasonably necessary to identify the product or

service; and (3) the defendant must do nothing that would, in conjunction with the mark, suggest

sponsorship or endorsement by the trademark holder.16 This defense and test was created when

12 Supra note 1013 See A&H Sportswear Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198 (3d. Cir. 2000)14 Id.15 See New Kids on the Block v. News America Publishing, 971 F.2d 302 (9th Cir. 1992)16 See Id. at 308.

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the court examined a survey performed by the defendant, and found that there was no way to ask

people their opinion of the band without using their name.17

Nominative fair use was extended to metatags18 in Playboy Enterprises, Inc. v. Welles,

where Playboy Playmate Terri Welles was sued for using the trademarked term “Playmate of the

Year” in a meta-element in her website.19 The court found that Welles had to use the term to

completely describe herself, as she had been given that title by the trademark holder.20

An earlier case, Volkswagenwerk Aktiensgessellschaft v. Church, saw an independent

auto repair shop that specialized in the repairs of Volkswagen cars, promoted that they did so in

their advertising.21 The court ruled that the auto repair shop was not liable for trademark

infringement, so long as they did not claim or imply that they had a business relationship with

Volkswagen.22

C. The “Super Bowl” Trademark

The NFL originally registered the mark Super Bowl with the USPTO on December 9,

1969.23 This created an ownership of the mark for entertainment services in the nature of

football exhibitions. The NFL had the exclusive right to use its mark in commerce for purposes

of advertising, marketing, and promoting this prestigious event. Since the original registration,

technology has advanced drastically and such advancements encouraged the NFL to reapply and

adjust the scope of their goods and services in relation to the Super Bowl trademark.

17 Id.18 A metatag is a coding statement in the HTML that describes some aspect of the contents of a web page.19 279 F.3d 796 (9th Cir. 2002)20 Id.21 411 F.2d 350 (9th Cir. 1969)22 Id. at 35223 United States Patent and Trademark Office, Registration No. 0882283,uspto.gov

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On November 27, 2007 the Super Bowl trademark was registered with a plethora of

goods and services to which it extends throughout. Goods and Services: television broadcasting

services; television transmission services; distribution of television programming to cable and

satellite television systems; distribution of television programs for others; cable television

broadcasting; radio broadcasting; broadcasting programming on the Internet; information

transmission via electronic communications networks; transmission of information through

video communication systems; broadcasting services and provision of telecommunication access

to video and audio content provided via a video on demand; streaming of audio material on the

Internet; streaming of video material and podcasts on the Internet; electronic delivery of images

and photos via a global computer network; providing multiple-user access to a global computer

information network for the purpose of participating in interactive polling in the field of

football; wireless communications services, namely transmission of text, graphics, data and

entertainment information to mobile phones; mobile media and entertainment services in the

nature of electronic transmission of entertainment media content.24

The advancement of goods and services was necessary as making a connection to the

game is a regularity in the world of football and advertising and expanding the scope was a

necessity for the NFL. The creativity of advertisers in maneuvering around the Super Bowl

trademark, forced the NFL to expand their “Super Bowl” trademark library. On top of at least

eight trademark registrations owned by the NFL containing the words “Super Bowl,” the NFL

owns the trademark registrations for the terms “Pro Bowl” and “Super Sunday.”25

24 United States Patent and Trademark Office, Registration No.3343714,uspto.gov, http://www.tmsearch.uspto.gov/bin/showfield?f=doc&state=4804:ynm7a5.2.18 (last visited Dec. 4, 2015)25 United States Patent and Trademark Office, Registration No. 1436771, uspto.gov, http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4804:ynm7a5.3.16 (last visited Dec. 4, 2015) and United States Patent and Trademark Office, Registration No. 1406345, uspto.gov, http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4804:ynm7a5.4.16 (last visited Dec. 4, 2015).

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Due to the NFL’s broad scope surrounding their Super Bowl trademark, “The Big Game”

has become a worthy alternative for businesses when marketing or noting the Super Bowl. In a

Deadspin article, they noted that in an entire Thursday prior to Super Bowl Sunday, TV

personalities and commercials said “The Big Game” on television more than 3,000 times.26

Thus, in 2007 the NFL tried to register the term “The Big Game” in an attempt to undermine

companies that engage in what the NFL believes to be “ambush marketing.” Ambush marketing,

or “parasite sponsoring,” refers to the direct efforts of one company to weaken or to attack a

competitor’s official association with a sports organization acquired through the payment of

sponsorship fees.27 Through advertising and promotional campaigns, the ambushing company

tries to confuse consumers and to misrepresent the official sponsorship of the event.28 The NFL,

however, abandoned its application of “The Big Game” after several large organizations were

preparing oppositions to the filing, in particular Stanford University and University of California

at Berkeley. After taking initial steps to opposing the trademark through the Collegiate

Licensing Co. (a firm based in Atlanta that represents over 175 schools, 17 bowl games, and the

NCAA), the Collegiate Licensing Co. stated that the schools “have developed a lot of equity in

the game and ancillary products like apparel…the NFL could never assert against the universities

that they can no longer use this phrase because of more than 100 years of use.”29 After several

months, the NFL abandoned its application of “The Big Game” as several large organizations

prepared oppositions to the filing along with Stanford and UC Berkeley. Such companies

26 “The Big Game” An Unnecessary Super Bowl Synonym, Thanks to the NFL, Deadspin.com, http://deadspin.com/the-big-game-an-unnecessary-super-bowl-synonym-thank-1512726537 (last visited Nov. 28, 2015) 27 NHL v. Pepsi-Cola Canada, Uh-Huh! Legal Parameters of Sports Ambush Marketing, Steve McKelvey, Ent. & Sports Law. Fall 1993, at 5.28 Id.29 NFL Marketers Want ‘Big Game’ Trademark/Cal, Stanford Fight to Protect Symbol of Football Rivalry, sfgate.com, http://www.sfgate.com/sports/article/NFL-marketers-want-Big-Game-trademark-Cal-2645219.php (last visited Nov. 28, 2015)

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included Wal-Mart, Taco Bell, Pizza Hut, Anheuser-Busch, Kellogg, Dell and Clear Channel

Broadcasting, a majority of which are not official NFL sponsors, although some pay millions to

advertise on Super Bowl broadcasts.30

The NFL licenses and thus allows use of the “Super Bowl” mark to a limited number of

official sponsors. The NFL has “entered into agreements with companies involved in specific

product categories – such as soft drinks or charge cards—to be exclusive sponsors of the NFL

and its Member Clubs. Sponsors are given the right to use the Club Marks and NFL Marks in

advertising, promotion and packaging, to promote themselves as an ‘Official Sponsor’ of the

NFL…”31 The official sponsor status can cost a company up to $100 million annually to be

affiliated with the NFL and further the Super Bowl.32 For the upcoming Super Bowl 50, the NFL

and the city of San Francisco have an abundance of sponsors that already had to pay this small

fortune. High level sponsors are listed as “founding legacy sponsors.” These include companies

such as Google, Intel, Chevron, Yahoo, BCG, SAP, and Intuit. The Super Bowl also has local

sponsors in local radio stations like Alice 97.3, and destination sponsors like Napa Valley and

Pebble Beach Golf Resort.33 These sponsors, who pay the high cost of the registered Super Bowl

license, do so in hopes of getting a share in the billions of dollars in consumer spending

associated with the Super Bowl.

There is an evident drive as to why retailers try to capitalize on an association with the

game; one word, exposure. As noted earlier, Super Bowl XLIX drew an average audience of

114.4 million viewers, making it the most watched broadcast in U.S. television history.34 Not

30 Id.31 NFL Props v. Dallas Cowboys Football Club, 922 F. Supp. 849, 851 (D.N.J. 1996)32 Robert Channick, Defense rules in guarding Super Bowl name:chicagotribune.com (Feb. 01, 2012), 33 Partners, sfbaysuperbowl.com, http://www.sfbaysuperbowl.com/about/partners#mwySj17e5OLm22kY.97 (last visited Dec. 4, 2015)34 Supra note 2

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only was it a major victory for the NFL and NBC, who broadcasted the game, but it was also a

victory for many of the game’s sponsors like McDonald’s and Budweiser who paid $4.5 million

per 30-second ad for the game.35 With crazy estimates such as 1.25 billion chicken wings will be

consumed, 12.5 million pizzas will be ordered, and 7.5 million households intend to buy new

televisions to watch the game, it is clear that companies would try and connect consumers with

their business and the Super Bowl as much as possible.36 Therefore, retailers try to capitalize on

an association to the game and the NFL brand by misappropriating profits from those legally

using the mark or causing brand dilution, but perhaps, this is nominative fair use driven as the

only alternative forced upon by the money hungry NFL.

D. Effect of the “Super Bowl” Trademark Protection

The exposure the Super Bowl presents is something that companies salivate over. In

2015, it was estimated that a total amount of over $14 billion would be spent in the United States

on Super Bowl advertised purchases.37 Thus, the NFL heavily protects their mark and also

protects their licensees by patrolling the Super Bowl mark heavily. The issue at hand is whether

such monopolization of the Super Bowl trademark is undue prejudice on other businesses or

perhaps is it a necessary strategy by the NFL to limit ambush marketing by other businesses.

Every year the NFL aggressively sends cease and desist letters to businesses using the

term, “Super Bowl.” The gravity of the situation was made clear in 2006 when the NFL sent a

cease and desist letter to the Fall Creek Baptist Church informing congregants they were in

violation of the NFL’s trademark rights. The church promoted its “Super Bowl Bash” on their

35 Id.36 Super Bowl XLIX By The Numbers, John S. Kiernan. Wallethub.com, https://wallethub.com/blog/super-bowl-by-the-numbers/1589/ (last visited Dec. 4, 2015)37 Estimated Super Bowl related consumer spending in the U.S. from 2007 to 2015 (in billion U.S., dollars)*, Statista.com, http://www.statista.com/statistics/217141/super-bowl-weekend-related-consumer-spending-in-the-us/ (last visited Dec. 14, 2015)

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website and the NFL objected stating that “using the phrase ‘Super Bowl’ on church fliers or

websites implies an NFL affiliation, that’s trouble if people are led to believe that the

neighborhood church is an NFL sponsor.” 38 The attack on the Fall Creek Baptist Church was

just one example of many trademark cease and desist letters the NFL sends out when a company

or organization tries to affiliate themselves with the Super Bowl.

Therefore, businesses are forced to dodge the severity of the situation by using terms like

“The Big Game.” There are however, some humorous examples such as Stephen Colbert’s

moniker “Superb Owl,” which referred to his watch party for “Sunday’s Tight Pants Man Clash,”

which fell just outside of the NFL’s trademark radar.39 Primarily, the change of language is less

humorous and more an attempt to trigger a relevance connection with consumers.

As we saw in the trademark nominative fair use factors it is based around a true

relationship between the NFL and third party business. However, while the NFL has its specific

licensed Super Bowl sponsors, like those who pay the huge $4.5 million for 30 sec ads, there are

those who continue with market ambushing. When the NFL tried to trademark “The Big Game,”

Stanford and Cal were major opponents, however, there were at least fifteen companies that filed

for extensions with the trademark office in order to prepare their own objections. Such

companies included Wal-Mart, Taco Bell, Pizza Hut, Anheuser-Busch, Kellogg, Dell and Clear

Channel Broadcasting; none of which were official NFL sponsors at the time.40 This shows an

evident concern for ambush marketing reasons. If the NFL were to trademark "The Big Game,”

then numerous companies and businesses would be further missing out on any form of affiliation

38 God vs. Gridiron, Alexandra Alter, Feb. 2, 2008, wsj.com, http://www.wsj.com/articles/SB120190701069036633 (last visited December 4, 2015)39 Stephen Colbert Finds NFL Trademark Loophole: Prepare for ‘Colbert Report’ ‘Superb Owl XLVIII’, Tony Maglio, Jan. 28, 2014, thewrap.com, http://www.thewrap.com/stephen-colbert-finds-loophole-nfl-trademark-get-ready-colbert-report-superb-owl-xlviii-video/ (last visited Dec. 4, 2015)40 Supra note 27

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with the game. However, is trademarking “The Big Game” really the answer? It might be, but if

the average consumer affiliated the Super Bowl with “The Big Game” what is stopping them

from affiliating it with any synonym for “big” or “game.” “The Large Game,” “The Giant

Game,” “The Huge Match,” “The Massive Football Battle,” etc. Therefore, regardless of what is

said, the issue may be that it is inevitable for the consumer to affiliate any football term or game

substitution with the Super Bowl regardless of how it may sound on television or the radio,

creating a major problem with the nominative fair use defense.

As noted earlier the Nominative Fair Use test provides one party may use or refer to the

trademark of another if: (1) the product or service in question must be one not readily identifiable

without use of the trademark; (2) only so much of the mark or marks may be used as is

reasonably necessary to identify the product or service; and (3) the defendant must do nothing

that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark

holder.41 The substitution of terms like “The Big Game” and its easy affiliation with the Super

Bowl nullifies the first prong of the defense test. With numerous options and creativity affluent

in marketing, businesses can communicate the Super Bowl to its consumers without ever using

the trademarked term “Super Bowl.” The second prong loses significance as well, as like the

first prong, none of the NFL’s trademark is necessary to describe the Super Bowl from an

advertiser’s perspective. The third prong analyzes a relationship created between the NFL and

any third party business. An item like “Super Bowl 50” merchandise is something that a

consumer can reasonably believe to be an official sponsorship. However, the substitution of

“The Big Game” for the “Super Bowl” has created an automatic relationship with the Super

Bowl, and more importantly confusion, on whether or not the good or service is affiliated with

the NFL. Therefore, creating a problem with the third prong as well. The substitution of “The 41 Supra note 16

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Big Game” and others have nullified the nominative fair use doctrine and has created exactly

what the Lanham Act and trademark law was created to prevent, more consumer confusion.

There are a number of potential lucrative trademark strategies that companies already use

to further their goods without being a Super Bowl sponsor, perhaps the NFL must do more in

their efforts to monopolize the “Super Bowl” trademark. The lack of nominative fair use

analysis under terms such as “The Big Game,” has created a bigger problem for the NFL, as no

use of the NFL or Super Bowl trademark is necessary to reap the benefits of the Super Bowl by

these parasite ambush marketers. It seems like in regards to trademark protection and ambush

marketing, the NFL will continue to send their cease and desist letters, but another strategy away

from trademarking “The Big Game” is necessary to consider, before the NFL tries to trademark

every combination of big and game they can find in the thesaurus.

II. COPYRIGHT ISSUES SURROUNDING THE SUPER BOWL

Under the current Copyright Act, live sports broadcasts are listed as works of authorship

as an audiovisual work.42 Such sports broadcasts are limited to certain audiences and recordings

throughout the United States. This section of the paper will address the copyright issues that

come in when the Super Bowl is shown in a location where a fee is charged to view the program,

or at a business that exceeds certain size limitations. This issue surrounds the Copyright Act and

42 17 U.S.C. § 102(a)(6)

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its right of copyright holders to limit the public performance of their works.43 Further, not only

are their issues with Super Bowl live broadcasting, but recordings as well.

A. Live Broadcasting

A Super Bowl party is something of a tradition in the United States. Everyone makes

their “famous” dip as most gather for the game, while others gather for the commercials.

However, limitations by Copyright law has created issues between the NFL and certain private

and public party broadcasts of the game. The copyright issues come in showing the Super Bowl

in a location where a fee is charged to view the program, or at a business that exceeds certain

size limitations.

The question is whether such parties are infringing on the exclusive right of the copyright

owner, the NFL, “to perform the copyrighted work publicly.”44 The Copyright Act provides very

specific requirements that exempt certain small establishments from the obligations to obtain

public performance licenses. Such examples are: no admission charge, only permitted to display

over-the-air TV, a bar or restaurant that must be under 3,750 square feet of space, and less than

four total televisions with no more than one per room and none bigger than 55 diagonal inches.45

Not adhering to these standards and not getting a commercial license to broadcast the Super

Bowl, will create litigation problems as was seen in the Copyright issues of the Fall Creek

Baptist Church’s “Super Bowl Bash” incident.

As noted earlier, the church was sent a cease and desist letter as they were violating the

NFL’s Super Bowl trademark. Furthermore, they were violating the NFL’s copyright as the

43 American Broadcasting Companies, Inc. v. Aereo, Inc., 143 U.S. 2498 (2014)44 17 U.S.C. § 106(4)45 17 U.S.C. § 110

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church planned to charge a $3 fee to attend the event to cover for snacks.46 After dropping the

fee, the NFL further objected to the church’s plans to use a projector to show the game, saying

the law limits a party to one TV no bigger than 55 inches. The church ultimately abandoned the

Super Bowl party idea.47 The church’s Pastor stated “it just frustrates me that most of the places

where crowds are going to gather to watch this game are going to be places that are filled with

alcohol and other things that are inappropriate for children…we tried to provide an alternative to

that and were shut down.”48

The NFL was within its rules to regulate the game by way of the Copyright Act, however,

was is it necessary in these circumstances? The threat of legal action has created a dark cloud

over various small establishments and dozens of churches.49 The strategy to ban mass out-of-

home viewings of the Super Bowl is an essential tactic for the NFL, but are they perhaps causing

unnecessary limitations for their fans and a further bad image?

Furthermore, backlash towards the NFL in regards to their Copyright fortification may be

inevitable. In 2008, John Whitehead, President of the Rutherford Institute, a Charlottesville civil

liberties group that focuses on religious freedom issues, had threatened to sue the NFL on behalf

of an Alabama church that wanted to host a big-screen Super Bowl party.50 He is further seeking

sponsors for federal legislation to exempt churches from the ban.

46 NFL Sacks Church Super Bowl Parties, Marcus Baram, Feb. 2, 2008, abcnews.com, http://abcnews.go.com/US/story?id=4229536&page=1 (last visited Dec. 4, 2015)47 Id.48 NFL Thwarts Church’s Plan to Show Super Bowl, Associated Press, Feb. 01, 2007, foxnews.com, http://www.foxnews.com/story/2007/02/01/nfl-thwarts-church-plan-to-show-super-bowl.html (last visited Dec. 4, 2015)49 Id.50 NFL Pulls Plug on Big-Screen Church Parties for Super Bowl, Jacqueline L. Salmon, The Washington Post, Feb. 1, 2008, www. Washingtonpost.com, http://www.washingtonpost.com/wp-dyn/content/article/2008/01/31/AR2008013103958.html (last visited Dec. 14, 2015)

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With advancements in technology that forced the adjustment of the scope of the Super

Bowl trademark, perhaps adjustment of the Copyright rules is necessary. Whitehead argued that,

“you can go into these stores now and buy 100-inch screens. The law is just outdated.”51 With

giant screens and high-definition projectors in homes these days, a superficial regulation about

television size is something that the NFL may look to review in the further years. Moreover,

with the overwhelming nightmare of public relations issues with the NFL recently (i.e. –

domestic abuse, concussion protocol, player discipline) it may be in the NFL’s best interest to

amend their broadcast regulations to open the gates to places like churches and community

centers.

B. Recordings of the Super Bowl

The development of new technologies like DVR, online streaming, and “The Cloud”

have forced broadcast companies and courts to reevaluate certain issues of copyright law. At a

time when the VCR was revolutionary, and before the 1976 Copyright Act existed, a copyright

infringement problem started in regards to Super Bowl III. The Super Bowl III problem is an

example of how new technologies have and will stretch the applicability of copyright law in

regards to not only the Super Bowl, but sports broadcasting as a whole.

At a time when there was limited copyright protection available, the issue arose as to the

property rights of live game broadcasts, and the illegal and unauthorized distribution of a

recorded NFL game.52 An online auction provider posted a VHS copy of Super Bowl III, the

NFL without any copyright protection of the game, may not be able to bring suit against an

51 Id.52 The Super Bowl III Problem: A Review of the Development of the Property Right in Live Professional Sports Broadcasts and a Practical Application of Copyright Law to an Infringement Action for the Unauthorized Reproduction and Distribution of a Taped Broadcast of Super Bowl III, Chris Garmire, Chicago-Kent College of Law, Journal of Intellectual Property, 2000

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unauthorized distribution of a recorded copy of Super Bowl III.53 There was no record of a

Copyright Registration for Super Bowl III by the NFL or either team, and still today the only

Super Bowl III relevant copyright registration is in regards to an ESPN documentary of the

game.54 In Burke v. National Broadcasting Co., the court discussed the concept of “limited

publication” stating a limited publication: “communicates the contents of a [work] to a definitely

selected group and for a limited purpose,…without the right of diffusion, reproduction,

distribution or sale…[T]he circulation must be restricted both as to persons and purpose…”55

Furthermore, in National Broadcasting Co., Inc. v. Sonneborn, the court ruled that under such a

definition, distributions of the copies of Peter Pan was at most limited publication which did not

cause NBC to lose their right to copyright protection.56 Worth noting, NBC only registered for a

copyright when they learned the Defendant was distributing the unregistered copies at issue.57

As applied to Sonneborn, it seems the NFL could potentially register Super Bowl III for a

copyright.58 Much like the distributed copies that were seen as a limited publication in

Sonneborn, the Super Bowl III broadcast was not distributed to any subsequent third party for

rebroadcast, as it was a one-time broadcast and intended for the private use of the audience.59

So, should the NFL register for a copyright of the Super Bowl III broadcast and have the

copyright upheld in court, the distributor of the copies on the online auction provider would be

considered to have infringed on the NFL’s copyright.60

53 Id.54 United States Copyright Office, Registration Number: PA0000867245, Oct. 06, 1997, cocatalog.loc.gov, http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=super+bowl+III&Search_Code=TALL&PID=KWrlpidafipfSii4oWqyPYNhpUP_mJG&SEQ=20151214133610&CNT=25&HIST=1 (last visited Dec. 14, 2015)55 598 F.2d 688, 692 (1st Cir. 1979)56 See 630 F.Supp. 524, 536 (D.Conn. 1985)57 Id. at 53058 Supra note 4759 Id.60 Id.

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The Super Bowl III problem stems from the always evolving world of technology that

allows for the furtherance of distribution of all types of media. The NFL will have to further

police their copyrights as copyright law and courts alike will need to keep up to speed of the

always advancing technological world. The Fall Creek Baptist Church dilemma and the Super

Bowl III problem are just two examples as to how the NFL will have to further police their

copyrights as technology advances and certain innovations become the norm. Protection is a

necessity, but limitation on the consumer may create an adverse reaction the NFL may be forced

to jump into.

III. Conclusion

The Super Bowl is the pinnacle sporting event in this country. Thus, the NFL countlessly

puts forth efforts to protect themselves from others hopping on the “coattails” of their premiere

event. Whether its strict copyright restrictions to all infringers, even churches; or companies and

businesses that without authorization mention the Super Bowl to create a connection with the

consumer.

At this stage of review, can you really blame them? The NFL for years has created a

spectacle that is a national holiday only short of congress penning it such. In regards to

trademark infringement, businesses for years have gone to creative and extreme lengths to allow

for a deception just outside the bar of trademark infringement that has create a consumer

connection. A Super Bowl 30 second spot is $4.5 million, is it fair that a company must hand

over such a large payment while these other companies can just say something like “The Big

Game” and not have to pay? It is something that the NFL undoubtedly has and must continue to

research into. Further in regards to Copyright restrictions, the NFL has tried to limit parties that

have an exceedingly large television and charge a fee to watch. The NFL, here as well, does not

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Quinn Rhoda Exam Number: 2815187

get any positive attribution from such behavior. So much like the trademark issue, they will have

to research into adjusting their copyright scope for certain watch parties while limiting others, if

at a minimum to assist in their public relations affairs.

The NFL, in my opinion, although harsh, must take such actions, in regards to their

intellectual property, to protect itself from these businesses and “fans.” So is the NFL really a

“super” bully or are we the public, and non-official sponsors, a “super” parasite?

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