Out of a Rare Super Bowl I Recording, a Clash with the N.F.L. Unspools
nytimes.com
nytimes.com
Makes an interesting real-life example of the problem with archiving anything for a long period of time.
"Haupt owns the recording but not its content, which belongs to the N.F.L. If the league refuses to buy it, he cannot sell the tapes to a third party, like CBS or a collector who would like to own a piece of sports history that was believed to be lost."
Copyright law does not (as far as I understand it) actually give someone "ownership" of a work. Rather, it criminalizes making copies of the work without the permission of the copyright owner. But the author of a book cannot prevent you from selling your copy to a library, a friend, or a rich collector.
My view would be that Troy Haupt ought to be able to sell his videotape to anyone he wants (just as he could sell a book). He ought to be able to show the content to anyone he wants (although a "public performance" is a different matter). If the NFL complains that the copy was made illegally, then they should sue Mr. Haupt's father (or his presumably long-settled estate).
Perhaps the legal theory here is that the NFL never authorized the recording so it's existence is the equivalent of stolen property?
EDIT: It's a recording of a live TV broadcast, which is probably different than if he was in a seat himself.
When you buy a book, you are actually buying a copy. When you videotape a TV show, you're not buying anything, you are MAKING a copy. That is the critical difference here. It would be more like if you borrowed a book from the library and made a photocopy, and then tried to sell that copy to someone else.
I'm not making a moral judgment here, just explaining my understanding of the law.
When you buy a tape, CD, book, etc., you have the right to re-sell it. As-is, without making a copy.
If his father had been at the game, and recorded it himself on his own video camera, he would be able to sell that tape. No one else could broadcast it, as that involves making another copy.
In "the Betamax case" - Sony Corp. of America v. Universal City Studios, Inc. - the Supreme Court said that time shifting was fair use as it did not substantially harm the copyright holder or reduce the market.
Selling the recorded video takes it outside of that definition of fair use.
These tapes predate the most recent major copyright act (they were made in 1974, the act was passed in 1976).
For example, among other things (i'm lazy and quoting wikipedia, which is correct in this point): Under the 1909 Act, federal statutory copyright protection attached to original works only when those works were 1) published and 2) had a notice of copyright affixed.
If no notice of copyright was affixed to a work and the work was "published" in a legal sense, the 1909 Act provided no copyright protection and the work became part of the public domain.
Maybe I'm just wishy washy.
That's not really up to the NFL, it's up to the guy who has the tapes being willing to give them away for free. The NFL is basically being extorted here. Sure they have the money, but why should they pay? The value of the tapes is zero, because the only possible buyer isn't interested.
it's up to the guy who has the tapes being willing to give
them away for free
'The value of the tapes is zero'; what a weird statement to make. Are the value of illegal drugs zero because 'the only possible buyers' (i.e., no one) can't show interest? There is inherent value in a recording of the first event of a series of events that attracts hundreds of millions of viewers.
If he uploaded a copy to youtube as part of a historical article or other non-commercial use, then the fair use analysis would likely go his way. Particularly for something of such cultural and historical relevance.
That said, trying to get money for it is certainly going to count against that analysis.
Refer to USC, Title 17, chap 1, § 107
[1] http://www.copyright.gov/title17/92chap1.html#107
Note that "educational purposes" are described, but not "cultural/historical relevance". Up for debate as to whether those intersect here.
Charge different tuition rates based on income. Pretend to 'subzidize' those who make less, in reality just charging you based on your income so they can maximize their endowment (corporate profit).
$6.5B endowment and still pestered the shit out of me for $20.15 upon graduating with debt. I paid it too, cuz otherwise I wasn't allowed to attend one of bigger graduation ceremonies.
2.There is a commercial on the recordings for True cigarettes, a brand that was owned by R.J. Reynolds. If they don't still own that trademark, could he sell the tapes for that commercial and apologize for the Super Bowl footage that the purchaser will have to deal with?
If he started a kickstarter for option 1, I bet a lot of people would pitch in a few dollars just to piss off Roger Goddell (NFL Commissioner).
I think option 2 is way too risky, and those who want the video will want the SB recording. Those people would still not have rights to air or show it.
Might be good to keep in mind that basically the guy has a "bootleg" copy of the game and there's no possible future where I see any kind of exemption to allow bootleggers to profit off of the material they obtained.
I'm a big fan of copyright reform in several different aspects, which is why these are interesting cases. Rarely do they go to court though. So basically we all get to, ahem, 'armchair quarterback' the facts, laws, and interpretations in front of us!
I'm also curious about the reproduction of "the work". If I write a symphony, that arrangement of melodies and instruments is mine. If you "performed" my work and recorded a copy of it, that copy is yours. I would probably take issue with you profiting from this copy without my consent, seeing as I own the IP rights, but what rights does writing the symphony give me over a performance of the work. If a school orchestra decides to perform my symphony and a proud parent records it, how much right do I have to the contents?
The analogy is rough at best. I use it to point out that there was effort in the production and maintenance of the copy, so the NFL may still not have the right to broadcast that "private production" without Haupt's consent, even if it were made public in an academic venue.
This is similar to how a fan's cell phone recording of a play belongs to the fan, even though he can't go about selling copies. If the NFL got ahold of the cell phone video, they also wouldn't have the right to broadcast it just because it's a recording of their IP.
Copyright law gets complicated and I'm certainly no expert. If someone can correct or clarify any of the above, be my guest.
You're right that copyright law is complicated - way too much so in my opinion - and we didn't even discuss whether you would be considered a member of a collection society (ASCAP/BMI) which would forbid the performance of your work in any venue which does not have a license from one of those societies! That comes up every once and a while when some record company finds out a coffee shop (not paying ASCAP/BMI) is hosting "Open Mic Night!" type events and people play cover songs by major artists. The coffee shop owners feel like getting a $2,000+ surprise bill isn't fair, which the societies would rightfully counter it's not fair for the coffee shop to make money from the Open Mic Night business without paying for the material that's increasing their business.
Fun stuff eh!
The loss or destruction of the tapes won't meaningfully impact the NFL. They didn't have a copy of the work beforehand, and so nothing changes if they don't come to an agreement. On the other hand, a special viewing of the "lost copy of Super Bowl I" could be very lucrative to the NFL and the airing network. Haupt has something valuable to the NFL. There is obviously an incentive for the NFL to make a deal.
What would the ramifications of submitting the tapes to a museum or other historical archive be? It might incentivize the NFL to make a deal if they know there is another legitimate course of action that Haupt can take to make the copy less rare. I'm not sure what the legal implications are.
Otherwise, wait another 45 years when the copyright runs out and sell them then.
Copyright law is so complicated. I'm not a lawyer, but here is what I understand, I welcome corrections and input.
In general, copyright rights are additive. For example,
* Alice can write a piece of sheet music, on which she owns the copyright
* Bob can then perform that sheet music. He owns the copyright on the performance. However, he can't publicly perform the piece without getting permission from Alice.
* Charlie can then make a recording of Bob's performance. He owns the copyright on that recording. However, he can't sell that copy without permission from both Alice (for the sheet music) and Bob (for the performance).
(I should add here that for music, this process has been greatly simplified in most cases by ASCAP, which dictates compulsory license fees for public performance and musical scores for pop music.)
In this case, it's further complicated, because I don't believe that the simple act of pressing "REC" on a VCR counts as creative input, and therefore probably doesn't generate a distinct copyright for this tape. Usually, when people talk about copyright for recordings, they are referring to the case where a sound engineer has captured the live sound, mixed it, and mastered it, to create a distinct new work of art.
There are two other aspects that might be relevant, and are only presented as complimentary, not contradictory.
The first is that in that the recording the Engineer is doing is a "Work for Hire" as I see it. While they may negotiate 'points' of residual income from the sales of the recordings for their labor/efforts/contributions, the ownership issue is a lot more simple. The other angle is that 'derivative' works, especially for Fair Use, have a really high bar to clear in modern times - but it's possible.
So, if Charlie is a Professor and he recorded Bob's performance of Alice's work, expressly so he can play one full song as an example in his University class "The Art of Shredding on a Violin while Playing Harmonica and Jumping Up and Down Simultaneously," then Charlie's use of the work should fall under Fair Use, and it doesn't matter the students are paying for the class or Charlie is paid an income by the institution. He's promoting progress of the arts and is protected in theory.
But this guy is also being greedy. If he wanted the world to have these tapes, he could give them away to a museum.
Wanting cash for these tapes is basically extortion.
It would be nice if the NFL gave him some money, but I don't see why they should/would.
There are at least two ways to extract monetary value. One is to wait until copyright expires in the US, which I think won't be for another 45 years.
The second is to take the tapes outside of the US and sell them in a country which has a lower copyright. If I understand the list at https://en.wikipedia.org/wiki/List_of_countries'_copyright_l... correctly, those include Australia ("50 years after making (television broadcasts and sound broadcasts)") and South Africa ("50 years from publication (sound recordings; broadcasts; programme-carrying signals; and published editions)").
This is like saying the only value of pot is 0 because the federal government makes it illegal to sell it. Illegal drugs are a 0 dollar a year industry!
It takes two to tango. The price isn't set until a buyer and a seller agree to it.
Only having one potential buyer certainly weakens the negotiating position. But there is only one seller too, which strengthens his position.
That's probably why they are having such a hard time coming to an agreement. It's an "what happens when an unstoppable force meets an immovable object?" A monopoly vs monopsony.
1/44th of Goodell's yearly salary
The only possible scenario I can think of is that they actually do have footage and are keeping it to themselves and essentially waiting until this third party footage corrodes and fails entirely due to time.
If they had footage, they would use it, since they are the only authorized users. This guy's tape would then be completely worthless.
"You're going to war with a corporation that owns a day of the week!"
edit: s/70/45/ assuming the expiration delay is 95 years after publication not 120 years.
And is the Smithsonian then an entity that could legally preserve it if not display its contents?
A much simpler and better solution is to not extend copyright to 120 years or whatever the hell it is now [1] (Thanks, Disney!). Twenty years or so should be plenty for all artistic works.
[1] https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St...
You happened to record, using your cell phone, a major news story?
Whoops, sorry. That video is no longer yours.
But that wouldn't really solve this problem. The owner wants to get paid.