​Is Your Big-Screen "Big Game" Party Legal?

     With the 51st "Big Game" coming up on February 5th, many Americans will be hosting or attending viewing parties. Your game day checklist may include beer, junk food, a giant 60-inch 4K LED TV, that great sounding 5.1 surround sound system, and a cease-and-desist letter from the league? Well, maybe.

     Several years ago, the league sent a cease-and-desist letter to an Indiana church that had planned to broadcast the "Big Game" on a large TV and charge an attendance fee. In the letter to the church, the league stated that it was a violation of copyright law to display "The Biggest Event in Pro Football" to a public gathering on a screen larger than 55 inches diagonally. The controversial order caused the league to back down and said it would not enforce its rule against church group's big-screen viewings as long as the showings are free and are on premises that the church uses on a "routine and customary" basis. But it still remains in effect that others cannot display the game publicly on sets larger than 55 inches.

So can I watch the game on my big-screen TV at home?

     Yes. As long as the guests that you invite are your friends and family in your private home. Technically, the league owns the copyright over the video of its game (and the name); not a copyright of the game itself. Copyright law grants the league a right over "public performances" of the work. Performing a work includes transmitting it over the air. So when you watch the "team that represents someone whole loves their country" vs "the birds of prey" on Sunday night, you are "performing" the copyrighted works.

     The copyright law is only enforced when performed publicly. Private performances, such as those in your own home, are not bound to the same rules of the Copyright Act.

     So it is perfectly legal for you to host a party for "Sunday's Big Game" in your own home with your 60", 70", or even 80". If you're feeling adventurous, you could even use an LED fine pitch video wall for your viewing party, which I wrote about in my previous blog.

Is it Illegal for restaurants and bars to broadcast "The Game"?

     Maybe. According to the Copyright Act, Section 110(5) allows bars and restaurants, among other public venues, to display a television broadcast on a single, ordinary television set. Section 110(5)(A) states,

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;

     So what about that 55 inch rule? Well let's suppose a bar has a 60-inch TV installed. This is where Section 110(5)(A) is applied. If the TV is "a single receiving apparatus of a kind commonly used in private homes," then it's legal, right? Well, maybe.

     Legally, to determine if the system as a whole is "a single receiving apparatus of a kind commonly used in private homes" an examination of a combined audiovisual setup would include a receiver, speakers, installation, and antennas.

So what is technically considered "the kind commonly used in a home?"

     Well, we can look at a court case involving the league and a lawsuit against several bars, restaurants, clubs, and other public venues and the illegal use of their audiovisual equipment. The venues were using equipment such as large antennas with multiple VHFs and amplifiers among other AV pieces to receive and broadcast blacked out games, specifically the "burnt sienna colored team" from Cleveland.

     The court decided that although the unusually large and expensive AV equipment being used by these public venues was technically available for use in a private home, it was not commonly used in a private setting. In fact, a comprehensive survey was taken of the surrounding neighborhoods of these Cleveland restaurants and bars and found that the equipment being used by these locations was within the 90th percentile of the local AV market at the time. The court deemed that this equipment was not what was commonly used within a home.

     So if we use the National Football League v. Rondor, Inc., 840 F. Supp. 1160 (N.D. Ohio 1993) case as mentioned above, although the audiovisual materials being used were available to purchase by anyone, it would be considered unusual for the average patron in a private establishment because most of the AV equipment was being used by 10% or less of the surrounding community. According to the court case, top-end equipment is considered to be unusual for a private home to commonly use. So what can a bar or restaurant use? Specifically, what size TV can a public establishment purchase or use for performances? According to a 2015 graph from Statista.com, in 2010, a 50-inch TV would have been considered uncommon. And in a 2014 article, TVs 65-inches or bigger accounted for only 2% of sets sold. Although larger size TVs, such as 60, 70, and 80-inch, are becoming more popular in the market demand today. So in today's market, a 60-inch screen maybe be in the safe margin of TV sizes.

So that 55-inch rule…

     According to the Copyright Act, there is no specific law on TV screen sizes for the "Great Pigskin Showdown" or other professional football league games. The only mention of a screen size limit is in subparagraph (B) of Section 110(5) of the Copyright Act. Subparagraph (B) only applies to "nondramatic musical works," which would be a musical composition, such as a popular song or music video, not incorporated and performed in an opera or musical theater. It also mentions the size of the venue. It is not an infringement of copyright if an establishment other than a food service or drinking establishment has 2,000 gross feet of space or more OR in the case of a food or drinking establishment has 3,750 or more gross square feet of space 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;

     To summarize, a small shop or store under 2,000 square feet OR a bar/restaurant under 3,750 square feet are exempt and can use any equipment to play and broadcast music without the need for a public performance license. But a large store or restaurant is restricted to the equipment they can use without having to pay a license. For a larger venue to get past the equipment restrictions, they would need to pay for a performance license. An example of the aforementioned clauses (i) and (ii) of subparagraph (B) would be if a bar broadcasts a performance of a musical work "by audiovisual means" — perhaps a music video — then for that venue to qualify for the exemption it must be shown on "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."

     So a viewing party of the "Championship Game" in a private home or small public venue has no restrictions on any audiovisual equipment at all (as long as you're not charging your guests for admission for the performance). A large public venue such as a bar, restaurant, or club is also legally allowed to broadcast the "Sunday Game" but with several audiovisual equipment restrictions. The broadcast of the actual game isn't a problem. But here is the problem with the "Big Game"— there are musical works that are performed during the game. These musical works include theme songs, music before and after commercial breaks, and of course the halftime show. So hypothetically speaking, if that bar previously mentioned would broadcast the game without a performance license, they wouldn't necessarily be in trouble with the league, but Lady Gaga and BMI would have a case against them. Unless, of course, they pay for performance royalty licenses.