Are churches "public venues" for NFL purposes?

Sat Feb 3 12:20:24 PST 2007

    I may be mistaken, but as I read 110(5)(B), it applies to
performances of *nondramatic musical works*; unless the NFL's claim
stems from their ownership of the copyright in the composition of some
jingle they play, then we're talking here about performance of an
audiovisual work (the televised game), not a nondramatic musical work.
If that's so, then the relevant exemption is 110(5)(A),
 
(5)(A) except as provided in subparagraph (B), communication of a
transmission embodying a performance or display of a work by the public
reception of the transmission on a single receiving apparatus of a kind
commonly used in private homes, unless - 

(i) a direct charge is made to see or hear the transmission; or

(ii) the transmission thus received is further transmitted to the
public;

    This isn't limited to an "establishment," nor does it have a 55-inch
limit.  But the question is whether the large-screen TVs are "of a kind
commonly used in private homes," which turns on whether "commonly used"
means "used in a substantial number of private homes" (a condition
that's surely satisfied) or "used in a substantial fraction of private
homes" (a dicier matter) -- plus of course there can only be one screen.
Or am I missing something here?


    Eugene


		The basic prohibition stems from 17 USC 106(5), which
gives the copyright owner the "exclusive right" to "publicly display" an
audiovisual work.  The restriction here presumably is triggered if the
church's "display" is "public" (on which see more below).  There is an
exemption in section 110(5)(B) for a

			communication by an establishment of a
transmission or retransmission embodying a performance or display of a
nondramatic musical work intended to be received by the general public,
originated by a radio or television broadcast station licensed as such
by the Federal Communications Commission, or, if an audiovisual
transmission, by a cable system or satellite carrier, if--
			(i) in the case of an establishment other than a
food service or drinking establishment, either the establishment in
which the communication occurs has less than 2,000 gross square feet of
space (excluding space used for customer parking and for no other
purpose), or the establishment in which the communication occurs has
2,000 or more gross square feet of space (excluding space used for
customer parking and for no other purpose) and--
			(I) if the performance is by audio means only,
the performance is communicated by means of a total of not more than 6
loudspeakers, of which not more than 4 loudspeakers are located in any 1
room or adjoining outdoor space; or
			(II) if the performance or display is by
audiovisual means, any visual portion of the performance or display is
communicated by means of a total of not more than 4 audiovisual devices,
of which not more than 1 audiovisual device is located in any 1 room,
and no such audiovisual device has a diagonal screen size greater than
55 inches, and any audio portion of the performance or display is
communicated by means of a total of not more than 6 loudspeakers, of
which not more than 4 loudspeakers are located in any 1 room or
adjoining outdoor space.
			 

		I don't think a church qualifies as an "establishment"
under the Copyright Act, which is defined (section 101) as "a store,
shop, or any similar place of business open to the general public for
the primary purpose of selling goods or services in which the majority
of the gross square feet of space that is nonresidential is used for
that purpose, and in which nondramatic musical works are performed
publicly."
		 
		Thus, even if its television were under 55 inches, the
church presumably would not qualify for the exemption.  On the other
hand, if it's display were not "public," then it would not appear to be
restricted in the first instance.  If invitees were limited to church
members, would that be a public display?  Well, the statute provides
that "to perform or display a work 'publicly'" means--

			(1) to perform or display it at a place open to
the public or at any place where a substantial number of persons outside
of a normal circle of a family and its social acquaintances is gathered;
or (2) to transmit or otherwise communicate a performance or display of
the work to a place specified by clause (1) or to the public, by means
of any device or process, whether the members of the public capable of
receiving the performance or display receive it in the same place or in
separate places and at the same time or at different times."

		A couple of things about this regime don't seem quite
right to me from a Free Speech Clause perspective, although without
thinking about it further, I'd be hard-pressed to explain exactly what
the problems are from a doctrinal perspective.  In particular, is it
problematic that places of business have greater rights to display tv
shows than do, e.g., nonprofit organizations (and that bars and
restaurants have the greatest rights of all)?  Moreover, this isn't a
case in which a for-pay broadcast is being displayed for free, or even a
case (as with VCRs) in which the viewers can avoid the advertising.  So
what interest do copyright owners have in restricting as many folks as
possible from seeing their programs (with advertisements)?  As the
article suggests, the reason for this restriction and its exemptions is
that copyright owners wish to prevent people from combining together in
large groups to watch television programs, because that practice
depresses ratings.  Can it really be the case that copyright law
restricts us from gathering together to watch free tv in order that our
viewing habits can be better measured?  And if so, isn't that a bit odd
-- whether or not it's constitutional?
		 
		I hope no one minds that I'm copying copyright maven
Bill Patry on this -- he might be able to shed further light -- as well
as Jack Balkin, who's done quite a bit of thinking about the
intersection of copyright and the First Amendment.
		 
		 
		----- Original Message ----- 

			From: Ed Darrell <mailto:edarrell at sbcglobal.net>

			To: Religionlaw at lists.ucla.edu 
			Sent: Saturday, February 03, 2007 1:50 PM
			Subject: Are churches "public venues" for NFL
purposes?

			I was interested to see a story in the Los
Angeles Times today saying churches were frantically cancelling their
planned Super Bowl parties because the NFL claims they are illegal.  The
NFL claims it is illegal to put the football game on any television
screen larger than a "living-room-size," or less than 55 inches.  Story
here:
http://www.latimes.com/sports/football/nfl/la-na-super3feb03,1,1708801.s
tory?coll=la-headlines-sports-nfl
			 
			I would have thought that churches are not
public venues, but are instead private associations?  
			 
			I'm not sure that I'd want to defend a right for
a church congregation to watch an NFL game, but I wonder if the NFL
hasn't overreached here, just a bit.
			 
			Your opinions?
			 
			Ed Darrell
			Dallas
			 
			Louisville Courier-Journal:
http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20070201/SPORT
S/70201053
			Indianapolis Star:
http://www.indystar.com/apps/pbcs.dll/article?AID=/20070201/SPORTS03/702
01036
			 
			 
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