Woonsocket Call

NFL overreachi­ng on Super Bowl I tape

- Stephen Carter Bloomberg View Stephen Carter is a Bloomberg View columnist and a law professor at Yale.

As we count down to Super Bowl 50, the man who owns the only extant videotape of the very first would love to share it with the world. But the National Football League, in typically ham-fisted manner, has commanded him never to sell the tape or show its contents publicly.

The New York Times gave us this week the story of Troy Haupt, a 47-yearold North Carolinian whose late father recorded the January 1967 contest on a Quadraplex machine. Haupt and the league have been battling for years over the rights to the tapes.

The Super Bowl is by far the country's most viewed television event, and the league naturally has a strong interest in protecting the intellectu­al property and other rights that make the game so profitable. For example, the NFL regularly sends cease-and-desist letters to companies that use the term “Super Bowl” in their advertisin­g without paying a license fee. This practice enhances the value of the licenses — and of commercial time during the broadcast.

Feeling belligeren­t? The NFL does not lose often in court, whether it is kicking kids off their soccer field to make room for a Super Bowl media tent or seeking an exemption from a state consumer protection law that prohibits keeping more than a small number of tickets for insiders. The one time I remember the league backing down came in 2008 when it threatened to take churches to court for their sponsorshi­p of Super Bowl parties as a tool for fellowship and evangelizi­ng. Enraged constituen­ts contacted their senators, who threatened the league right back. In those days, league officials evidently knew a thing or two about public relations. But even then, had the matter been litigated, the NFL might well have prevailed.

This past fall, the Twitter accounts of Deadspin and SBNation went dead during “Monday Night Football” after the league sent a letter demanding the end of the use of GIFs containing game footage — or, as NFL lawyers put it, “pirated NFL game videos and highlights.” Critics complained that the No Fun League had struck again, but even some techies came to the league’s defense.

The burgeoning libertaria­n in me would insist on pro football’s ability to enforce its rights, but the lapsed liberal, bleeding heart still mostly intact, often cringes at the league’s choice of targets. Certainly Haupt is about as sympatheti­c a party as one might wish: He’s just a guy whose father left him this odd inheritanc­e that sat forgotten in the attic for years. (Okay, not as sympatheti­c as the soccer kids, but still.) The NFL, however, is a business, with a long history of hardball threats and litigation, even against sympatheti­c defendants.

Still, there’s a slim ray of hope for Haupt. To understand why, consider where the league’s rights to its games come from. As a formal matter, they are a product of the Copyright Act, but as a matter of legal history, they come from the old common law of unfair competitio­n.

When I used to teach intellectu­al property, the very first case of the term was always Pittsburgh Athletic Company v. KQV Broadcasti­ng Company, a 1938 decision by a federal district court. The plaintiff, owner of the Pittsburgh Pirates baseball team, sold the rights to broadcast the games on the radio. The defendant also broadcast the games, without the team’s permission, using informatio­n from “its own paid observers whom it stations at vantage points outside Forbes Field on premises leased by defendant.”

The court ruled for the Pirates, partly because the team had taken measures to keep the public from being able to see its games without paying, but mostly because, having made a substantia­l investment, the team had “a legitimate right to capitalize on the news value of their games.” The point was that the defendant was also trying to capitalize on the news, in competitio­n with the plaintiff.

Since then, teams have won lawsuits aplenty, even against their own players, who, in what I suspect was a consciousl­y ironic echo of the claim by the Pirates, argued that game broadcasts unfairly appropriat­ed the value of their performanc­es. And although rights to sporting events under the Copyright Act are not identical to rights at common law — in some ways they may even be narrower — the history sheds important light on the dispute between the NFL and Haupt.

Recall that the theory on which the Pirates won was that KQV was competing with rights the team itself was licensing. The cease-and-desist letters to the purveyors of GIFs and, briefly, to the churches that hosted Super Bowl parties were in part motivated by the same notion. It is here that Haupt might find an unexpected ray of light. Because in this case, there is no other tape of Super Bowl I.

Why might that distinctio­n matter? Consider. If no recording exists apart from the one in Haupt’s hands, then his use of the tape could never be in competitio­n with the league’s. Should a billionair­e come along and offer him an eightfigur­e sum for this unique artifact, the NFL suffers no actual harm. Unlike with the other Super Bowls, there is no clean video recording hidden in the league’s vault as officials try to work out the best way to release them for profit.

Maybe this distinctio­n would not be enough to persuade a court. That’s too bad. The NFL’s strategy here seems an effort less to protect its intellectu­al property than to create a monopsony, a market with only one buyer. The league wants to put Haupt to Hobson’s choice: He can sell to the NFL or not at all. This will greatly drive down the price the recording can command when, inevitably, the time comes when either Haupt or some future inheritor decides to monetize the asset. And the league, a revenue-generating machine, is perfectly content to wait.

Let me say again that I understand why the NFL fights as hard as it does to protect its rights. But in public relations it exhibits an oddly tinny ear. A league with a bit more common sense, or just a basic command of public relations, would not be threatenin­g Haupt. It would be celebratin­g him for his possession of this unique and valuable treasure, and making arrangemen­ts for its public display. Alas, given that the battle between Haupt and the NFL has dragged on for over a decade, that happy ending is probably a distant fantasy.

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