Super Bowl XLIV planning list: Beer? Check. Deep-fried snacks? Check. Large-screen television? Check. Cease-and-desist letter from the National Football League? Uh-oh. In an “Explainer” column originally published in 2007 and reprinted below, Daniel Engber reviewed the rules for showing the big game.
A Baptist congregation in Indiana plans to cancel its Super Bowl party this weekend, after receiving a threatening letter from the National Football League. NFL officials say the church would have broken the law by charging an admission fee and by screening the game on a TV that exceeds 55 inches. [Update: In 2008, the NFL granted an exemption for big-screen parties at churches, “as long as the showings are free and are on premises that the church uses on a ‘routine and customary’ basis.”] Slate’s Josh Levin has also promised to host a Super Bowl party with his new, gigantic television. Will he get in trouble, too?
No. The 55-inch limit cited by the NFL applies only to public showings of the Super Bowl, not private gatherings. According to U.S. copyright law, Josh is in the clear so long as he doesn’t take his gigantic TV to a public place, or invite “a substantial number of persons” to his house—more than a normal circle of family and social acquaintances. If he sticks to those rules, his Super Bowl party will be a private display and won’t infringe on the rights of the NFL, no matter how big his television. (Since he’s hosting a private event, he could even get away with charging his guests admission.)
Public displays are more tightly controlled; as a general rule, they require the consent of the league. But there is an exception, from section 110 of the copyright law: You can show the game to a big crowd, provided you’re not charging people to watch it and that when you tune in, you’re only using “a single receiving apparatus of a kind commonly used in private homes.” (This is called the “homestyle” exemption.)
Here’s where things get fuzzy. Would a 134-inch projection TV be “homestyle,” as in, “of a kind commonly used in private homes?” How about a 70-inch plasma screen? Given the rapid changes in video technology and consumer spending habits, it’s very difficult for the courts to make these determinations. That means the NFL lawyers have to decide for themselves when a screen is too big and it’s time to send a threatening letter.
In 1998, Congress amended the copyright law to give a little bit more guidance when it comes to a class of events known as “nondramatic musical works.” (This designation might include the Super Bowl’s theme music and halftime show.) The new rule gave bars and restaurants the right to broadcast these works on any television that’s smaller than 55 inches and hooked up to fewer than five loudspeakers. They were also allowed to use more than one television at a time, as long as each one was in a different room.
At the time, the 55-inch limit was seen as a major concession to electronics retailers and restaurants; a TV that big would never have been considered “homestyle,” but the new rule made it legal for a bar to use one. In fact, the 55-inch rule put the United States in violation of an international treaty on intellectual property. (We’re still paying off fines to the World Trade Organization as a result.) These days, more people have large screens in their homes, and the rule seems like less of a departure from the homestyle exemption. It also gives the NFL lawyers a handy rule of thumb: Instead of worrying over whether a certain television is “commonly used,” they can just apply the 55-inch, four-loudspeaker rule across the board.
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Explainer thanks Marshall Leaffer of the Indiana University School of Law and Neil Netanel of UCLA.