Churches, Big Screens, and the Super Bowl

[Marty Lederman]

And Bill Patry e-mailed me the following:
  I agree that churches aren't covered by Section 110(5) of the Copyright Act for the performance of the Superbowl for the reasons you give. There is one special limitation for churches in Section 110(3) for certain types of musical works, and then there is a general non-profit limitation that would include churches in Section 110(4), but 110(5) is clearly intended to reach for-profit bars, restaurants and the like. It has a very long history.  As a matter of historical interest, there was a famous case in the Second Circuit under the 1909 Act involving some Catholic priests who performed "Jesus Christ Superstar" without permission (and for profit too). They lost. More recently, the Second Circuit upheld an infringement claim by the Lubavitchers over their siddur, rejecting a claim federal courts couldn't get involved in religious disputes. And, the only copyright act ever held unconstutional (by the DC Circuit), was on religious establishments grounds, over a private bill for Mary Baker Eddy's followers in a dispute with a dissident group.
When I asked him about Eugene's point that 110(5)(B) seems to apply only to musical works -- and not the Super Bowl at all (save perhaps for the half-time performance by His Royal Purple Majesty) -- Bill replied:
  Eugene is correct about it only applying to nondramatic musical works and not applying for that reason too.  

  In the old days, that is before the amendments in 1998 that created the 55-inch language, the statute spoke of a single receiving apparatus of a kind commonly found in private homes.What was commonly found in private homes was left up to ASCP and BMI and they both had different ways of figuring that out for TVs. One approach was to limit TVs to those that had tubes, so that is where the size of the TV concept game in. The entire concept of a common apparatus was vague though, so in the 1998 amendments, Congress went in (B) for specific figures, including this in (ii):

  (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.

  But your initial point - that a church isn't the type of "establishment" covered by the section is correct, as is Eugene's more global point that the provision is limited in any event to nondramatic musical compositions and not aufiovisual works. Indeed, many have complained (and did at our congressional hearing) that in the case of TVs, ASCAP and BMI are trying to license jingles and the like that really have no economic value at the consumer level (as compared to live bands in a bar). 

  So why, you might ask don't the owners of copyright in the TV shows and movies being shown on TV sue? Because they earn money from advertisers based on the number of eyeballs so the more people see it the more money they make. Plus, they don't want to spend the money chasing every dive in the country. The sports leagues do care though, although usually for blackout purposes: they want to drive people to buy tickets to the actual games and if sports bars in the area where the game is played are making it too comfy, they clamp down. 
 

  ----- Original Message ----- 
  From: Douglas Laycock 
  To: religionlaw at lists.ucla.edu 
  Sent: Sunday, February 04, 2007 12:11 PM
  Subject: Churches, Big Screens, and the Super Bowl


  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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