Churches, Big Screens, and the Super Bowl

[Douglas Laycock]

  I asked my colleague Jessica Litman about yesterday's discussion of
churches, big screen TVs, and the Super Bowl.  Jessica is a big time
copyright expert, but she adds that she has dropped her bar
membership and cannot give legal advice in any state.  Beyond that,
she says:

Believe it or not, it does depend in part on how big the screen is. 
 
The other parts are how big the church is and how many people come
to  the party.

The deal is that copyright owners have an exclusive right to perform 

a work (here, the telecast of the game, which includes camera
angles,  copyrighted music, copyrighted ads, some copyrightable 
commentary)  publicly.  Publicly is believed to include churches, and, 
in fact,  churches have a specific exemption from the public 
performance right 

to cover music or religious plays performed during services.  I
think  nobody has actually sued a church, but I feel pretty confident 
that  if a lot of people were inside it, a court would find the
performance  public.  There's a general exception for playing 
television or radio 

programming using "a single receiving apparatus of a kind commonly  
used in private homes" -- hence the question about the size of the  
television screen.  If they sell it in Circuit City for the home  
videophile, it's okay.   That privilege only applies if there's no  
direct charge to see the program.

There's also a sports bar exception, that allows use of up to four
55  inch (diagonal) screens and six loudspeakers; technically, that  
exception doesn't privilege showing video on those screens but just  
playing music (very bad drafting), but the NFL has behaved for now
as  if the provision applies to its programming.  That section has 
some  square footage limitations, but they're pretty generous.

Assuming there's a single screen, I would think the churches would
be  able to claim their TVs are of a type commonly used in private  
homes.  If not, they have better-then-colorable fair use arguments.

/At this point, I asked:/

  Do the sports bars have a genuine "exemption"?  Or are they
paying  
a license fee (or a higher price for their cable)? -- DL
        It's a genuine exemption, and the WTO has ruled that it
violates the 
US's treaty obligations under TRIPS.  The small restaurant owners  
association blocked the 1998 copyright term extension bill until  
composers and music publishers agreed to broaden a
small-restaurant  
exception (created by the Supreme Court in the mid-1970s and
codified 
by Congress in 1976) into a big restaurant exception.  The 1998 
Sonny  Bono copyright term extension bill, thus,  contained two 
titles:  the  one extending copyrights 20 years and the one
enacting 
a new  performance exception for stores, bars and restaurants.  
Because the  dispute was between ASCAP & BMI on one side and bars
and 
restaurants  for the other, the exception in 17 USC 110(B) only 
permits the  playing of music on up to four TV screens of up to 55" 
size and says  nothing about showing the picture.  Nobody, though, 
has yet sued a  bar arguing that the plain meaning of the statute 
requires sports  bars to turn the picture on 3 of their 4 big
screen 
TVs off.

  Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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