Ridiculous Copyright Fight Still Keeping The Only Video Of The First Super Bowl Locked Up

from the because-copyright dept

We first wrote about this issue in 2014, but the only known video recording of the very first Super Bowl only exists because a fan taped the TV broadcast, back in 1967. Now, as we're about to have the 50th Super Bowl, the fight has not only continued, but according to a NY Times article, the fight has been getting nastier.

That NYT article also, for the first time, names the guy who has the tape: Troy Haupt, whose father went into his office and recorded (most) of the game, believing such a tape might be valuable some day. For the past few years, all anyone knew was that a lawyer named Steve Harwood claimed to represent an anonymous client whose father had taped the game. The game itself had been shown on both CBS and NBC, but back in those days, archiving stuff wasn't a big deal, and neither broadcaster kept a copy of the tape. It wasn't that long before people realized that might be a mistake and by then there was nothing left (as far as anyone knew), and many argued that it was one of the great "lost treasures."

It was only after a 2005 Sports Illustrated article that talked about the fact that the video was lost, that a friend had reminded Haupt of the video in his mother's attic. And, then, of course, came the copyright fight. The NFL (as it has a habit of doing) insisted that it, and it alone, held the copyright on the video, and Haupt would be infringing on its copyright if he tried to do anything with the video. Of course, Haupt and his lawyer still held the physical tape (which they had restored by the Paley Center, and stored in a place to keep it safe). And thus, we get to the difference between the copyright on the content, and the ownership of the physical item.

Haupt asked the NFL for $1 million for the tape -- the price that Sports Illustrated had estimated such a tape might be worth. The NFL offered $30,000. And then there was a stalemate, with neither side budging for years, and the NFL constantly threatening a copyright lawsuit should Haupt do anything with the tape. With the 50th anniversary, Haupt thought that maybe the NFL would finally be willing to deal... but instead, the NFL showed a totally different video of Super Bowl 1 that was not the video of the actual broadcast. Instead, they went out and found a large number of "clips" from other sources, and patched it all together, claiming it's the entire game, even if it appears really disjointed.

Apparently, now that the NFL (which makes billions) has its "tape," it wants to be even more ridiculously petty towards Haupt. According to the NY Times:
And last week, Haupt was angry about another turn in the dispute. CBS backed out of a plan to interview him for a Super Bowl pregame segment that would have used a few minutes from the game. It had agreed to pay him $25,000 and give him two tickets to the Super Bowl. A producer was preparing to watch a restored, digital copy of the game at the Paley Center. A crew was ready to go to Manteo. He was going to tell his story, and perhaps the league would listen.

“It was my right to tell my story, and they were paying me for it,” Haupt said.

But according to his lawyer, Steve Harwood, the deal collapsed when he was told that the N.F.L. had ordered CBS not to pay him.
Just when you think the NFL can't get more petty, it does exactly that.

Even more bizarre is that according to the NY Times, the NFL is insisting that Haupt isn't even allowed to sell the physical tape to someone else:
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. He would like to persuade the league to sell the tapes jointly and donate some of the proceeds to their favorite charities.....
This is bullshit, and hopefully Haupt's lawyer has explained to both Haupt and the NFL that this is bullshit. The First Sale Doctrine still exists in the US, and it's the reason that you can sell a copy of a physical book or painting without first getting permission from the copyright holder. The First Sale Doctrine separates the copyright from the tangible thing. So he absolutely can sell the tape, despite what the league and the article claim. Updated update: So I had originally crossed out this paragraph and thought maybe I'd gone too far with it, after someone pointed out that First Sale might not apply, because the first copy wasn't legally purchased. But as a few others have commented (both below and in email), that may not matter. The question is whether the work was "lawfully made" under the Copyright Act... and we know that taping video off the TV is considered okay under the Supreme Court's Betamax ruling. Thus, the first sale right could very well apply here.

But, even then, the NFL seems to make bogus copyfraud arguments, saying that if he does sell the tape, and the contents leak somehow, Haupt would be liable for any such release.
But that is unlikely to happen. A letter from the league to Harwood last year provided a sharp warning to Haupt. “Since you have already indicated that your client is exploring opportunities for exploitation of the N.F.L.’s Super Bowl I copyrighted footage with yet-unidentified third parties,” Dolores DiBella, a league counsel, wrote, “please be aware that any resulting copyright infringement will be considered intentional, subjecting your client and those parties to injunctive relief and special damages, among other remedies.”
Again, it's not clear that this is true. The purchasing party may very well be liable for any infringement that results, but Haupt should be in the clear once it's sold, so long as there's no evidence that the sale was simply a sham to get the video released. Bizarrely, the NY Times quotes a copyright law professor claiming that the NFL is actually correct here:
The law favors the league, said Jodi Balsam, a professor at Brooklyn Law School.

“What the league technically has is a property right in the game information and they are the only ones who can profit from that,” said Balsam, a former N.F.L. lawyer.
As David Post notes at the Washington Post, Professor Balsam is either woefully misinformed or was misquoted, because of course, you don't get to copyright "game information" at all. Merely the specific expression which was the broadcast. In fact, cases revolving around data (such as scores) and factual information (such as names and stats) have come down quite clearly saying that the league does not own "game information."
And I respectfully suggest that Prof. Balsam gets her copyright law wrong (or was misquoted) when she says that “the law favors the league” and that “the league technically has is a property right in the game information and they are the only ones who can profit from that.” The league doesn’t have a property right in “the game information” at all. [There’s another case squarely on point that discredits this idea, too — NBA v. Motorola from the Second Circuit (105 F.3d 842, 1997)]. The “game information” — who won, who lost, how many passes Bart Starr threw, how many time Kansas City ran running plays, the sequence of plays that led to Green Bay’s final touchdown, etc. etc. etc.] — is not protected by copyright at all; only the broadcast is protected. And there is nothing in copyright law that says that only the NFL can “profit” from that — Haupt is entitled to get as much money from selling his copy as he can.
There's also a separate issue that I haven't seen reported anywhere, which seems like it should be relevant. The game was in 1967, which was under the 1909 Copyright Act, which required registration ("formalities") in order to get the copyright. And, while it's quite likely that CBS and NBC, who both broadcast the game, likely had a deal in place with the NFL where the NFL retained the copyright, there's a question of whether or not the NFL actually did register that copyright in the first place. It's entirely possible that, given the fact that no one actually thought it was worth keeping a copy of the video, that similarly no one thought it was worth it to register the copyright.

And that leads us to the final point. The NFL itself apparently couldn't have been bothered to keep a copy of the video of the game itself, which is what makes the resulting situation particularly egregious and ridiculous. To claim ownership over the thing that you totally neglected to the point that you thought no longer existed seems ridiculous. It also raises the question of whether the NFL abandoned the copyright, even if it did register it. Copyright abandonment is a defense that someone accused of infringement can make, arguing that the copyright holder deliberately abandoned the work (leaving it in the public domain). Abandonment can be tough to show, however, since it requires showing that the copyright holder intended to abandon the copyright and performed an "overt act" to make it happen. You can argue that the intent was there in the failure to keep a single damn copy -- but is that an overt act? Usually the "overt act" is seen as something like a declaration that the work is in the public domain. That obviously doesn't exist here.

But, still, hopefully in the end people can recognize just how messed up copyright law is that it would reach this kind of stalemate, in which the public is deprived of such a historic event.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    That One Guy (profile), Feb 4th, 2016 @ 10:41am

    If we can't have it, no-one can

    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. He would like to persuade the league to sell the tapes jointly and donate some of the proceeds to their favorite charities.....

    That is just taking vindictiveness and pettyness to whole new levels. 'Either sell it to us on our terms, or be sued into the ground if you try and sell it to anyone else'.

    What's even worse is the fact that it doesn't matter whether they actually have a legal leg to stand on here, as the odds of a judge being willing to award Haupt legal fees should he sell the tape anyway and the NFL sues is likely pretty low, so any money he'd get out of the sale would likely be burned through from defending himself in court even if he won, something I've no doubt the NFL considered with their threat.

    Like many examples from the legal system, you don't have to have the law on your side to win, just more money than the other person.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Feb 4th, 2016 @ 10:50am

    Wait what? I'm not on the NFL's side but how can the first sale doctrine apply to something this guy didn't buy in the first place? The NFL did not sell the tape to him. He made it. To this day it's not okay for people to sell their own recordings of broadcasts to other people.

    The NFL should pay him for his service of preservation. Nothing else.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Feb 4th, 2016 @ 10:52am

    Peanuts

    The amount he's asking for is figuratively just peanuts to the NFL. They regularly spend hundreds of times the amount on more ridiculous things. In comparison, this is an important piece of their history, or so one would think.
    Personally, i don't give a damn about american football, but if i was an institution that made a living profiting from the passion fans have for a game, i'd certainly try to acquire the only known recording of part of my history.

    reply to this | link to this | view in thread ]

  4. icon
    Coogan (profile), Feb 4th, 2016 @ 10:58am

    Come on guys. If this guy's allowed to infringe on the NFL's copyright by selling the tape of the first Super Bowl, then what incentive will the NFL have to produce future Super Bowls?

    /s

    reply to this | link to this | view in thread ]

  5. icon
    That Anonymous Coward (profile), Feb 4th, 2016 @ 10:59am

    "The law favors the league"

    And in a nutshell, everything wrong with copyright today.

    reply to this | link to this | view in thread ]

  6. identicon
    Sman88, Feb 4th, 2016 @ 11:01am

    What he should do is take the tapes to a large area, invite the media and NFL executives, then pour gas on the tapes and light them on fire.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Anonymous Coward, Feb 4th, 2016 @ 11:02am

    Re: If we can't have it, no-one can

    If he moves to an anti-slapp state first, he might have a chance.

    reply to this | link to this | view in thread ]

  8. icon
    JoeCool (profile), Feb 4th, 2016 @ 11:17am

    Re:

    "invite" => sell tickets

    Come watch the burning of the ONLY copy of the first Super Bowl!! Only $1000 per ticket... cheaper than watching a Super Bowl!

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Feb 4th, 2016 @ 11:19am

    They should amend copyright law just to spite the NFL and guarantee that they have no copyright claim. Then let this guy sell copies of the video himself and not give the NFL a cent.

    reply to this | link to this | view in thread ]

  10. icon
    Nate (profile), Feb 4th, 2016 @ 11:26am

    Re:

    That's what I was thinking.

    reply to this | link to this | view in thread ]

  11. icon
    Mike Masnick (profile), Feb 4th, 2016 @ 11:28am

    Re:

    Wait what? I'm not on the NFL's side but how can the first sale doctrine apply to something this guy didn't buy in the first place? The NFL did not sell the tape to him. He made it. To this day it's not okay for people to sell their own recordings of broadcasts to other people.

    That's a good point, actually... will add something to the post.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, Feb 4th, 2016 @ 11:30am

    Re:

    Unless the copyright has expired then it would be fine.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, Feb 4th, 2016 @ 11:33am

    "lose" the tape and see it uploaded on the internet. Fuck'em.

    "I had the tape in my car b/c I wanted to watched it at home. I stopped for a bite to eat and someone broke into my car..."

    reply to this | link to this | view in thread ]

  14. identicon
    Copybot, Feb 4th, 2016 @ 11:39am

    Re:

    Amend copyright law to benefit the little guy... Error. Does not compute.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, Feb 4th, 2016 @ 11:40am

    Re:

    Lol. I was thinking just that. Don't even sell tickets. Invite the media and stream a video of an old TV playing the game in the middle of a fire pit. Keep everyone far enough back that they can see it is the first game but not be able to see the details. Light the fire and offer the NFL one more chance or watch it burn away with millions of other viewers watching. Later reveal that the copy is still safe but that the NFL doesn't feel that it is worth buying. Lot of pressure would then be put on the NFL by fans.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, Feb 4th, 2016 @ 11:54am

    Re:

    This is what I was thinking. Oh no! It was stolen! What will I do now?! I'll have to watch it on the internet, as some clever thief uploaded it to this torrent site......

    reply to this | link to this | view in thread ]

  17. icon
    Adam (profile), Feb 4th, 2016 @ 11:55am

    Valid Copyright

    When I first heard of this video I started doing research on the copyright because I was interested. Now I am not a copyright lawyer so I don't know if this is all 100%.

    In 1967 you had to register your copyright within 28 years, which was what you had for your first registration length. You could then renew the copyright at the end of 28 years for additional time. The 1976 copyright act removed the need to renew your copyright registration and extended the length of time for recordings from 1967, but left the original requirement to be registered within 28 years of creation. So the question becomes did somebody register the copyright of the recording between 1967 and 1995?

    I started looking through scanned copyright registrations with 1967 and made it through a few years before I just gave up, but I never did find any registration in those first few years.

    If anybody wants to dig through scanned images from 1967-1978 and then search through the digitized records from 1978-1995 here is the link:http://www.copyright.gov/records/

    reply to this | link to this | view in thread ]

  18. icon
    ECA (profile), Feb 4th, 2016 @ 12:03pm

    HOW is copyright done?

    OK..
    Who has a RIGHT to copy protect the video..
    NBC, CBS, NFL?
    NBC and CBS dump the video..Lost it..Threw it away..
    Why didnt the NFL, ASK for a copy?? or the original??

    HOW is copyright done for the Corporation?? By Broadcast or by the OWNING of a copy of the video??

    IF the original was Erased...AND they needed to pay for Copyright, and DIDNT.. Is there any claim to Copyright?

    This reminds me of What happened to the 'Doctor WHO' series..300 Lost episodes..They searched the World for Copies..and HAPPY to find that people HAD made copies of most of it..

    reply to this | link to this | view in thread ]

  19. icon
    Violynne (profile), Feb 4th, 2016 @ 12:05pm

    Yet, come this Sunday, none of this matters because "OMFG! IT'S THE SUPERBOWL!"

    /hates we can't fix stupid.

    reply to this | link to this | view in thread ]

  20. icon
    Tostie14 (profile), Feb 4th, 2016 @ 12:09pm

    Re: Valid Copyright

    Better yet. If there wasn't a copyright notice appended to the original broadcast when it aired, then it should technically be in the public domain because of the (then) copyright formality requirements back in 1967

    reply to this | link to this | view in thread ]

  21. icon
    surfer (profile), Feb 4th, 2016 @ 12:14pm

    I'm confused..

    Is not the copyright OWNED by the producer of said broadcast/filming/photograph?

    If neither the NFL or Mr.Haupt registered the required 28yr copyright on the 'tape' AND the NFL cannot own the contents of the tape, how in the world is this even a fight?

    either;
    "This telecast is copyrighted by Mr. Haupt for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the Mr. Haupt's consent is prohibited."

    simply replace NFL with Mr. Haupt on the NFL's bullshit claims they spew during any televised game.

    or:
    Shouldn't this tape be in the public domain?

    'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.', remember?

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, Feb 4th, 2016 @ 12:19pm

    Abandonment can be tough to show, however, since it requires showing that the copyright holder intended to abandon the copyright and performed an "overt act" to make it happen.

    This occurred in 1967. Let's repeat that, 1967. Unlike now, it wasn't possible to accidentally lose your recordings because you updated your computer systems, or switched to another IT provider, or even because the file happened to be in a folder you deleted. None of those were possible in 1967 because the recordings weren't on computers. They were on tapes. Not those pansy VHS tapes either, these were big.

    The only way to get rid of the recording in 1967 was if you very deliberately walked over, picked it up, and carried it over to the dumpster. And I'm really not sure how much more overt you can get.

    reply to this | link to this | view in thread ]

  23. identicon
    Capt ICE Enforcer, Feb 4th, 2016 @ 12:27pm

    Juice worth the squeeze

    Hmmm, 1 million dollars for selling a tape, but would have to pay 150k for copyright infringement. Seems like a win to me.

    reply to this | link to this | view in thread ]

  24. identicon
    cpt kangarooski, Feb 4th, 2016 @ 12:29pm

    Re:

    Wait what? I'm not on the NFL's side but how can the first sale doctrine apply to something this guy didn't buy in the first place? The NFL did not sell the tape to him. He made it. To this day it's not okay for people to sell their own recordings of broadcasts to other people.


    No, that's not quite right. Here's the pertinent language from the statute:
    Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.


    The person who made the copy owns it, so it doesn't need to have been sold to him. The question is whether it was lawfully made. This is actually a very interesting question which has never really been answered.

    For example, if you make a copy for time shifting purposes under Sony and fulfill the fair use requirements, that is lawfully made. Can you then sell it? While it might be relevant for the fair use analysis whether you planned to sell it at the time you made it, does it matter if you only decided to do so after it was made?

    Even assuming the original broadcast was copyrighted (which might be a state issue that I don't want to wade into) it might be legal to sell this copy. Not to make more copies necessarily, but to sell the actual tape or whatever it is.

    reply to this | link to this | view in thread ]

  25. identicon
    Capt ICE Enforcer, Feb 4th, 2016 @ 12:34pm

    Prostitute

    Hmm, he is doing it wrong. Just like a prostitute doesn't sell sex, but instead sells condoms with free trial. This guy should not sell superbowl 1, but instead he is selling a limited edition slightly used dvd.

    reply to this | link to this | view in thread ]

  26. identicon
    Paul Clark, Feb 4th, 2016 @ 12:34pm

    Re: Re:

    Lets assume he did buy the blank video cassette. If he did, can he not sell it under first sales doctrine since the physical item and the copyright are separate?

    He should sell it to someone in another country who will stick the game up on the Internet for everyone to watch.

    reply to this | link to this | view in thread ]

  27. icon
    steell (profile), Feb 4th, 2016 @ 12:46pm

    Ok, I'm a little confused. I thought copyright applied when the performance was recorded on a fixed medium? And were not the Super Bowl broadcasts live with no tape delay in at least the early years? Seems to me that Mr.Haupt should own any copyright on the video that his Dad created.

    IANAL, or anything else now.

    reply to this | link to this | view in thread ]

  28. icon
    Nate (profile), Feb 4th, 2016 @ 12:56pm

    Re: Re: Re:

    Go look up MPAA v Sony, the Betamax case. I bet this detail is covered there, and I also bet that it says you can't sell the copy you made.

    reply to this | link to this | view in thread ]

  29. identicon
    Anonymous Coward, Feb 4th, 2016 @ 3:15pm

    1909 Deposit Requirements

    COPYRIGHT ACT OF 1909, AS AMENDED

    § 5. Classification of works for registration
    The application for registration shall specify to which of the following classes the work in which copyright is claimed belongs:
     . . .
    (m) Motion pictures other than photoplays.
     . . .


    § 12. Works not reproduced for sale
    Copyright may also be had of the works of an author, of which copies are not reproduced for sale, by the deposit, with claim of copyright  . . . of a title and description, with not less than two prints taken from different sections of a complete motion picture, if the work be a motion picture other than a photoplay; . . .


    § 13. Deposit of copies after publication; action or proceeding for infringement
    After copyright has been secured by publication of the work with the notice of copyright as provided in section 10 of this title, there shall be promptly deposited in the Copyright Office or in the mail addressed to the Register of Copyrights, Washington, District of Columbia . . . or if the work is not reproduced in copies for sale there shall be deposited the copy, print, photograph, or other identifying reproduction provided by section 12 of this title, such copies or copy, print, photograph, or other reproduction to be accompanied in each case by a claim of copyright. No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this title with respect to the deposit of copies and registration of such work shall have been complied with.

    reply to this | link to this | view in thread ]

  30. icon
    non-anonymous coward (profile), Feb 4th, 2016 @ 3:32pm

    Copy in Copyright Office?

    If the original work was registered 50 years ago, wouldn't there be a physical copy deposited with the Copyright Office?

    reply to this | link to this | view in thread ]

  31. identicon
    Anonymous Coward, Feb 4th, 2016 @ 3:34pm

    Re: Re: Valid Copyright

    … a copyright notice appended to the original broadcast when it aired…
    Under the 1909 act, “publication” was an event with legal significance, and when that event occurred was defined by the courts.
    § 10. Publication of work with notice
    Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section 22 of this title.
    I'd have to look up the exact significance of a television broadcast in terms of “publication” under the 1909 act.

    I do know that the courts changed their minds on this issue with respect to radio broadcasts.

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, Feb 4th, 2016 @ 3:43pm

    Re:

    I thought copyright applied when the performance was recorded on a fixed medium?
    The Copyright Act of 1976 significantly altered copyright in the United States.

    It is a huge mistake to confuse the requirements of the prior, 1909 Copyright Act with either the requirements of the 1976 act for new works, or the requirements of the 1976 for works originally granted copyright protection under the 1909 act.

    In addition, for unpublished works created prior to the 1976 act, some states may grant protection under state law.

    reply to this | link to this | view in thread ]

  33. identicon
    Anonymous Coward, Feb 4th, 2016 @ 3:51pm

    Re: Re:

    … assuming the original broadcast was copyrighted (which might be a state issue that I don't want to wade into)…
    In 1967, was a television broadcast tantamount to “publication” under the 1909 act?

    reply to this | link to this | view in thread ]

  34. icon
    JMT (profile), Feb 4th, 2016 @ 4:24pm

    Re:

    It's also possible they recorded over the tapes with other work to save money, like the BBC did with a lot of the earlier Dr Who episodes. That's a pretty overt act too.

    reply to this | link to this | view in thread ]

  35. identicon
    Anonymous Coward, Feb 4th, 2016 @ 4:46pm

    Copyrightable subject matter under 1909 act

    In 1967, were television broadcasts of live sporting events subject to copyright under the 1909 act?

    In particular, were the performances of atheletes on the field considered “the writings of an author” (§ 4) ?

    Did a live television broadcast belong to the class of “motion pictures other than photoplays”, or any other enumerated class in § 5 ?

    reply to this | link to this | view in thread ]

  36. identicon
    Anonymous Coward, Feb 4th, 2016 @ 5:37pm

    Kinescope

    From the Sports IllustratedSI's 25 Lost Treasures” article mentioned above:
    FIRST SUPER BOWL Tape

    Although 77 million viewers tuned in at the time, it's believed that only a two-minute clip remains from the broadcast of Super Bowl I at L.A.'s Memorial Coliseum on Jan. 15, 1967. Both CBS and NBC aired the Green Bay Packers' 35--10 rout of the Kansas City Chiefs on kinescope, but the four reels of 16-mm film were recorded over shortly afterward.
    Emphasis: Kinescope

    Wikipedia:
    Kinescope /ˈkɪnᵻskoʊp/, shortened to kine /ˈkɪniː/, also known as telerecording in Britain, is a recording of a television program made by filming the picture from a video monitor.

    Typically, the term can refer to the process itself, the equipment used for the procedure (a 16 mm or 35 mm movie camera mounted in front of a video monitor, and synchronized to the monitor's scanning rate), or a film made using the process. Kinescopes were the only practical way to preserve live television broadcasts prior to the introduction of videotape in 1956. . . .

    reply to this | link to this | view in thread ]

  37. identicon
    Anonymous Coward, Feb 4th, 2016 @ 5:39pm

    Re: Juice worth the squeeze

    Not exactly. Copyright law allows you to sue for either actual damages or statutory damages. Statutory damages can be awarded up to 150k. On the other hand, there's no upper limit for actual damages, provided you can prove the existence of said damages. And explicitly selling the video for $1 million makes it very easy to prove $1 million in damages.

    reply to this | link to this | view in thread ]

  38. identicon
    Anonymous Coward, Feb 4th, 2016 @ 6:24pm

    Archival

    Archival is a fantastic thing. We have the ability to digitise and preserve books, images, videos, etc. indefinitely. It's rather inspiring to think that I can make digital art that could be around thousands of years after I die for others to enjoy!

    But just like we have the power to archive it, so too do we have the power to destroy it. Proprietary/obsolete formats, anti-circumvention clauses, copyright... All working to ensure anything we do could be destroyed and lost permanently at any moment.

    Why, in a time such preservation is possible, is greed still the main focus? Neither party in this dispute seems to care about history, only the money they can make from it.

    reply to this | link to this | view in thread ]

  39. identicon
    Anonymous Coward, Feb 4th, 2016 @ 6:28pm

    The Super Bowl III Problem

    The Super Bowl III Problem: A Review of the Development of the Property Right in Live Professional Sports Broadcasts and a Practical Application of Copyright Law to an Infringement Action for the Unauthorized Reproduction and Distribution of a Taped Broadcast of Super Bowl III”, by Chris Garmire, Chicago-Kent Journal of Intellectual Property, Spring 2000
    II. Sale Of Videotaped Professional Football Games Prior To 1976, Specifically, The Sale Of A Videotape Copy Of The Broadcast Of Super Bowl III

    The genesis of this section of the paper was an offer made on an online auction house for a VHS copy of Super Bowl III. Super Bowl III was originally broadcast in 1969, in an era when VCR’s were quite rare. It was also an era when the property rights in live sports broadcasts were quite different than they are today. . . .
    ( I do not necessarily agree with the author of this paper, but it would be remiss to neglect considering it. )

    reply to this | link to this | view in thread ]

  40. icon
    Atkray (profile), Feb 4th, 2016 @ 6:44pm

    Re: Kinescope

    Interesting in 1976 and still in 2016 NBC using technology that is 10+ years old.

    reply to this | link to this | view in thread ]

  41. identicon
    Anonymous Coward, Feb 4th, 2016 @ 7:45pm

    Re: Re:

    House Report No 94-1476 on Copyright Law Revision (1976), p.52
    The bill seeks to resolve, through the definition of “fixation” in section 101, the status of live broadcasts—sports, news coverage, live performances of music, etc.—that are reaching the public in unfixed form but that are simultaneously being recorded. . . . If the program content is transmitted live to the public while being recorded at the same time, the case would be treated the same; the copyright owner would not be forced to rely on common law rather than statutory rights in proceeding against an infringing user of the live broadcast.
    The important point here is not the new law under the 1976 Act. Rather, the Judiciary Committee's explanation of the changes made by the act reveal their contemporary understanding of then-existing law.

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  42. identicon
    Kevin Marquette, Feb 4th, 2016 @ 8:59pm

    Are these rules universal?

    Can he travel to a country that is lax on copyrights and sell it to someone else there? What about international waters?

    I would bet someone that is willing to pay top dollar for that video has a yacht that they could take out for an afternoon.

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  43. icon
    That One Guy (profile), Feb 4th, 2016 @ 9:13pm

    Re: Valid Copyright

    All I can say is that is's certainly a good thing they removed the requirement for registration, can you think of how confusing this whole mess would be if people were able to make a simple check to see if something was under copyright, and if so, who had the current rights to it? Madness, pure madness I say.

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  44. identicon
    Anonymous Coward, Feb 4th, 2016 @ 9:35pm

    Re: Re: Valid Copyright

    … certainly a good thing they removed the requirement for registration…
    Of course, under the 1909 regime, registration was not required for unpublished works.

    Estate of Martin Luther King, Jr v CBS (11th Cir. 1999)
    Under the regime created by the 1909 Act, an author received state common law protection automatically at the time of creation of a work. This state common law protection persisted until the moment of a general publication.[Footnote 3] When a general publication occurred, the author either forfeited his work to the public domain, or, if he had therebefore complied with federal statutory requirements, converted his common law copyright into a federal statutory copyright.
    I've omitted citations in this extract, but the footnote is worth emphasis—
    [Footnote 3] We stress that in this area of the law the word "publication" is "a legal word of art, denoting a process much more esoteric than is suggested by the lay definition of the term." [citation]

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  45. icon
    tqk (profile), Feb 4th, 2016 @ 9:50pm

    First sale, yes.

    Update: Oops. As someone noted in the comments, and which is probably true, the first sale doctrine doesn't apply here since he didn't "buy" the recording in the first place. I'm retracting this claim.

    Don't. If he taped it off an on air broadcast, he paid for it by "consuming" the commercials. They were giving it away, paid for by the advertisers who paid them to air it. They've been compensated. It's their own fault they made a stupid deal. Cash is not the only thing worth monetary value. Ask the advertisers.

    The NFL gave it away considering, at the time, a copy of it was worth nothing. They defined its value at outset. That he found a way to make what they defined valueless worth something gives them no right to stick their nose into his business.

    Ridiculous is right.

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  46. icon
    tqk (profile), Feb 4th, 2016 @ 10:06pm

    Re:

    I'm not on the NFL's side but how can the first sale doctrine apply to something this guy didn't buy in the first place?

    Assuming an over the air broadcast, the price was consuming the commercials from advertisers who paid NFL to broadcast it. They were paid. End of story.

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  47. icon
    tqk (profile), Feb 4th, 2016 @ 10:16pm

    Re: HOW is copyright done?

    This reminds me of What happened to the 'Doctor WHO' series..300 Lost episodes..They searched the World for Copies..and HAPPY to find that people HAD made copies of most of it.

    And nothing of any value was gained. Dr. Who: worst SciFi ever.

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  48. identicon
    Anonymous Coward, Feb 4th, 2016 @ 10:17pm

    Re: Re:

    The question is whether it was lawfully made.
    Estate of Martin Luther King, Jr v CBS (11th Cir. 1999)
    Second, a general publication may occur if the work is exhibited or displayed in such a manner as to permit unrestricted copying by the general public. See American Tobacco ("We do not mean to say that the public exhibition of a painting or statue, where all might see and freely copy it, might not amount to [divestive] publication. . . ."); { . . . } However, the case law indicates that restrictions on copying may be implied, and that express limitations in that regard are deemed unnecessary. See American Tobacco, (holding that there is no general publication where artwork is exhibited and "there are bylaws against copies, or where it is tacitly understood that no copying shall take place, and the public are admitted . . . on the implied understanding that no improper advantage will be taken of the privilege" (emphasis added)); { . . . }
    (My elisions in curly braces.)

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  49. identicon
    Anonymous Coward, Feb 4th, 2016 @ 10:19pm

    they will probably spend hundreds of millions in lawyer fees just to deny him from doing anything with it. when it would be cheaper to take his price.

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  50. identicon
    Anonymous Coward, Feb 4th, 2016 @ 10:41pm

    Re: Re:

    Later reveal that the copy is still safe

    Brilliant plan.
    Then we get to watch the Law taking the tape into protective custody on behalf of the NFL, while the tape's owner gets hauled to court on charges of attempted blackmailing.

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  51. icon
    Wyrm (profile), Feb 4th, 2016 @ 11:18pm

    We should go back to the original purpose of copyright in the Constitution: to promote the progress of science and useful arts. Which means that whatever work you hold the copyright of, particularly now in the internet age, must be made available to all (but obviously not necessarily for free) one way or another.

    If you try to discriminate your public or downright decline to spread the work, you should lose the copyright. And if you are simply not able to, for example because you never cared enough to keep a sample to copy from, then you also loser the copyright.

    Basically, nobody should have a legal way to block the spread of a work, so such blocking should only occur when one is trying to spread the work himself. (Please note that, in this legal frame, an unfair price - but constant across all markets - would not be considered blocking. It would only be a stupid way to do business.)

    That would not be an answer to all the problems of copyright, but it would at the very least address the availability issue.

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  52. icon
    That One Guy (profile), Feb 4th, 2016 @ 11:34pm

    Re: Re: If we can't have it, no-one can

    Wouldn't likely help, anti-SLAPP laws are to 'discourage' people from suing to try and shut someone up, here the threat is simply 'You're not allowed to sell to anyone but us', which isn't likely to be considered as falling under the category of speech.

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  53. identicon
    Anonymous Coward, Feb 4th, 2016 @ 11:42pm

    Re: Re: Re:

    The important point here is not the new law under the 1976 Act.

    NBA v Motorola (2nd Cir. 1997)
    Federal copyright law played little active role in this area until 1976. Before then, it appears to have been the general understanding — there being no caselaw of consequence — that live events such as baseball games were not copyrightable. Moreover, doubt existed even as to whether a recorded broadcast or videotape of such an event was copyrightable. In 1976, however, Congress passed legislation expressly affording copyright protection to simultaneously-recorded broadcasts of live performances such as sports events. See 17 U.S.C. § 101. Such protection was not extended to the underlying events.

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  54. identicon
    Anonymous Coward, Feb 5th, 2016 @ 1:18am

    Re: Re: HOW is copyright done?

    Esterminate..exterminate..exterminate....

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  55. identicon
    Beech, Feb 5th, 2016 @ 2:17am

    Re: I'm confused..

    "If neither the NFL or Mr.Haupt registered the required 28yr copyright on the 'tape' AND the NFL cannot own the contents of the tape, how in the world is this even a fight?"

    There is no copyright on "the tape." The tape is a COPY of a copyrighted work. The "NFL" (or maybe CBS/NBC) owns the sole exclusive right to make copies of the Broadcast of the first Superb Owl. This guy('s dad) made his OWN copy for preservation purposes under a "loophole" in the law that allows you to make copies for personal use.

    If it worked the way you allege, then I could have gone into a theater and cammed a copy of Steamboat Willie, not renewed copyright on my illicit copy, and my copy of Steamboat Willie would be in the public domain even as Disney was jealously protecting theirs.

    That said, the NFL should pay the man. They can make way more than a mil off this.

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  56. identicon
    Anonymous Coward, Feb 5th, 2016 @ 2:44am

    Re: Re: I'm confused..

    The tape is a COPY of a copyrighted work.
    Not necessarily.

    Under the 1976 Act today, I'm pursuaded by NBA v Motorola (2nd Cir. 1997), that the underlying sports event is not copyrightable subject matter:
    1. Infringement of a Copyright in the Underlying Games

    In our view, the underlying basketball games do not fall within the subject matter of federal copyright protection because they do not constitute "original works of authorship" under 17 U.S.C. § 102(a). Section 102(a) lists eight categories of "works of authorship" covered by the act, including such categories as "literary works," "musical works," and "dramatic works." The list does not include athletic events, and, although the list is concededly non-exclusive, such events are neither similar nor analogous to any of the listed categories.

    Sports events are not "authored" in any common sense of the word. . . .
    (Footnote omitted.)

    That reasoning is specific to the 1976 Act. Congress changed the language in that 1976 general copyright law revision from the former language of the 1909 Act (as amended), which read:
    §4. All writings of author included

    The works for which copyright may be secured under this title shall include all the writings of an author. July 30, 1947, c. 391, 61 Stat. 654.
    See House Report 94-1476:
    In using the phrase “original works of authorship,” rather than “all the writings of an author” now in section 4 of the statute [section 4 of former title 17], the committee’s purpose is to avoid exhausting the constitutional power of Congress to legislate in this field, and to eliminate the uncertainties arising from the latter phrase.
    Nevertheless, it seems clear to me that the reasoing of NBA v Motorola applies to the 1909 Act.

    Sports events, as such, are not the writings of an author.

    That does not exhaust the issue, of course. Motion pictures of live sports events might still be copyrightable subject matter, following the line of cases which begins with Burrow-Giles Lithographic v Sarony (1884).

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  57. identicon
    Anonymous Coward, Feb 5th, 2016 @ 4:00am

    Re: Re: I'm confused..

    … a copy of Steamboat Willie
    Steamboat Willie, a 1928 cartoon, under the 1912 amendment to the 1909 act, may be one of either—
    (l) Motion-picture photoplays.
    (m) Motion pictures other than photoplays.
    See pp.556-7 (pp.5-6 in PDF) of “Motion Picture Copyright”, by Milton Aronson, Washington University Law Review, Jan 1940, explaining that “other than photoplays” might include cartoons, but “no decision has ever defined the types of film included in this class”.

    No matter whether it is a photoplay or not, that cartoon would seem to be at least similar to a dramatic work. It has authors.

    Further, it was fixed as a motion picture before distribution to theatres and exhibition to the public.

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  58. identicon
    Anonymous Coward, Feb 5th, 2016 @ 5:01am

    Not so proud to be an American there, are you bud. What a bunch of weasels.

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  59. icon
    Ninja (profile), Feb 5th, 2016 @ 5:29am

    Re:

    Superb Owls, don't forget!

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  60. icon
    Mike Masnick (profile), Feb 5th, 2016 @ 7:00am

    Re: Re:

    The person who made the copy owns it, so it doesn't need to have been sold to him. The question is whether it was lawfully made. This is actually a very interesting question which has never really been answered.

    For example, if you make a copy for time shifting purposes under Sony and fulfill the fair use requirements, that is lawfully made. Can you then sell it? While it might be relevant for the fair use analysis whether you planned to sell it at the time you made it, does it matter if you only decided to do so after it was made?

    Even assuming the original broadcast was copyrighted (which might be a state issue that I don't want to wade into) it might be legal to sell this copy. Not to make more copies necessarily, but to sell the actual tape or whatever it is.


    Yeah, after thinking this through... I think I'm back to this position that the first sale claim isn't so crazy. I've updated my update...

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  61. identicon
    cpt kangarooski, Feb 5th, 2016 @ 7:08am

    Re: Re: Re:

    Yes, I know that publication isn't necessarily the same thing as public performance (though I fail to see why this should be so) and I did say that I didn't want to consider whether the broadcast was uncopyrighted.

    But my argument involved fair use, which assumes that it was copyrighted.

    Nowadays, under statutory fair use, that a work is unpublished doesn't preclude fair use (if it did, Sony would go out the window, or it would stand for the proposition that broadcasts to the general public are publication), but it's difficult to say whether it would've precluded fair use in the 1960s under common law fair use, particularly if you're asking a modern day court to try to decide it.

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  62. icon
    David Post (profile), Feb 5th, 2016 @ 7:10am

    Mike, you were right the first time ...

    ... when you wrote that the first sale doctrine allows Haupt to sell this tape to anyone who wants to buy it. It's true that there was no "first sale" by the copyright owner here - but the first sale doctrine does not require that. What is says is that "the owner of a copy lawfully made" can dispose of that copy without authorization. A copy can be lawfully made even without authorization from the copyright owner - if, e.g., it was a "fair use" to make the copy.

    Here's what the House Report accompanying the 76 Copyright Act said:
    "To come within the scope of section 109(a), a copy or phonorecord must have been "lawfully made under this title," though not necessarily with the copyright owner's authorization. For example, any resale of an illegally "pirated" phonorecord would be an infringement, but the disposition of a phonorecord legally made under the compulsory licensing provisions of section 115 would not."

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  63. identicon
    cpt kangarooski, Feb 5th, 2016 @ 7:51am

    Re: Re: Re:

    And if you think that's fun, the situation is further complicated by Kirtsaeng, but in a good way. Does the first sale requirement of a copy being lawfully made under _this_ title mean, per Kirtsaeng, in accordance with the 1976 Act at the time of the sale, or merely in accordance with US copyright law at the time the copy was made?

    As an aside, the nuances of first sale are why the AHRA was changed in drafting (apparently at the behest of the RIAA and without the knowledge of Congressional staffers who normally do this work at the direction of Congress) so that making copies under the AHRA is a non-actionable infringement (that is, illegal but not grounds for a lawsuit) rather than the original plan of simply being non-infringing.

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  64. icon
    tqk (profile), Feb 5th, 2016 @ 12:06pm

    Copyright? What about embarrassment instead?

    I wonder if we're getting the wrong signal about this thing.It's possible that the NFL couldn't give a damn about its copyright in this in order to exploit it. Perhaps they instead view it as an embarrassment which they'd like to see cease to exist?

    - Where's the two hour long halftime show with lights and fireworks and wardrobe malfunctions?

    - Maybe they don't want to admit that they took money from advertisers who are the competition of current or recent ones.

    - Or, maybe there's a shot of one of the linemen taking a bad head and neck jarring hit who's currently suing the NFL, and this would bolster their case.

    There are endless alternative possibilities when looked at this way.

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  65. icon
    tqk (profile), Feb 5th, 2016 @ 12:30pm

    Re: Re:

    Superb Owls, don't forget!

    Super Bowels. Eww.

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  66. identicon
    Anonymous Coward, Feb 6th, 2016 @ 8:28pm

    Re: Re: Re: Re:

    …which assumes that it was copyrighted.
    17 U.S.C. § 303 - Duration of copyright: Works created but not published or copyrighted before January 1, 1978
    (a) Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. . . .


    H.R.Rep.No. 94-1476, p.138
    Section 303. Preexisting Works Under Common Law Protection

    Theoretically, at least, the legal impact of section 303 would be far reaching. Under it, every “original work of authorship” fixed in tangible form that is in existence would be given statutory copyright protection as long as the work is not in the public domain in this country. The vast majority of these works consist of private material that no one is interested in protecting or infringing, but section 303 would still have practical effects for a prodigious body of material already in existence.
    (Extract stops at end of page, but analysis of this section continues on p.139.)

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  67. identicon
    Anonymous Coward, Feb 6th, 2016 @ 9:15pm

    Re: Re: Re: Re:

    … it's difficult to say whether it would've precluded fair use in the 1960s under common law fair use, particularly if you're asking a modern day court to try to decide it.
    “Common law fair use” under Pennsylvania law?

    From the New York Times article:
    The tapes are a bizarre heirloom that, for decades, sat largely ignored in the attic of his family’s three-bedroom house in Shamokin, Pa., deteriorating from shifting temperatures. . . .

    [Martin Haupt] went to work on Jan. 15, 1967, with a pair of two-inch Scotch tapes, slipped one, and then the other, into a Quadruplex taping machine and recorded the Green Bay Packers’ 35-10 win over the Kansas City Chiefs. . . .

    It would take another eight years . . . And [his wife, Beth Rebuck] put them in the attic . . .
    Unless you can point to non-mandatory federal registration under §§ 12 & 13 of the 1909 act—or if you're arguing general publication.

    Judge Ferguson in Universal v Sony (C.D.Cal.1979) found:
    Neither the Copyright Act of 1909 ("Old Act") nor the revised Act of 1976 ("New Act") gave copyright holders monopoly power over an individual's off-the-air copying in his home for private, non-commercial use.
    But I'm not seeing anything in there about Pennsylvania law.

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  68. identicon
    Anonymous Coward, Feb 6th, 2016 @ 9:53pm

    Re: Re: Re: Re: Re:

    17 U.S.C. § 303(a)
    Just for clarity—

    • We're not dealing with phonorecords in this particular situation.

    • Neither are we dealing with §301(c)'s “sound recordings fixed before February 15, 1972” in this particular situation.

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  69. identicon
    cpt kangarooski, Feb 7th, 2016 @ 12:06am

    Re: Re: Re: Re: Re:

    I see you need some help here. Fine, I'll spell it out for you.

    "...which assumes that it was copyrighted, which is unclear for two reasons. First, because, at least according to the Times article, it isn't clear whether the author of the work, in this case the TV network, made a copy. Since the Constitution limits copyright to 'writings' a purely live broadcast (not at all uncommon back in the day) could not be copyrighted. For most TV programs, this wasn't a big deal; scripts could still be copyrighted, for example, but obviously that wouldn't fly for sporting events. Second, because it's unclear whether or not the broadcast would qualify as publication, and if published, it needed to bear notice, which it might not have had. Your quote above isn't super helpful, as it admits that public display (and presumably performance, there's no meaningful difference here) can be publication under some circumstances and can not be publication under others. While the irrelevant part starting at the 'See American Tobacco' mark indicates that a tacit or implied understanding about there being no copying might cause the performance not to be publication, there pretty certainly was no such understanding for a broadcast back in the day, as it was likely not imagined that anyone in the nationwide home audience would even have the ability to record it."

    If you need more hand-holding in the future, it doesn't bother me.

    “Common law fair use” under Pennsylvania law?

    Common law fair use because fair use has been a part of federal common law since 1841, and was not codified into the form we now know it as until the 1976 Act. If it is necessary that the taping be a fair use in order for the tape to have been lawfully made -- and as noted above, if the broadcast was not copyrighted, fair use needn't apply -- then it was common law fair use that was in effect at the time. Then the immediate question is, does a court try to apply the fair use standard that was actually in effect then, which will have to be sussed out from the caselaw of the day, or does it go ahead and apply modern fair use precedents retroactively, aside from anything that is only present due to codification? It's not unknown for courts to do this sort of thing in civil common law cases, and Sony would make it real easy.

    As for mid-1960's Pennsylvania state copyright law issues, I don't even want to wade into such a briar patch unless it's unavoidable. Which is again why my preferred way of disposing of this case would be to find that the broadcast was copyrighted under federal law, but that the making of the tape was a fair use under federal law, which means that the tapes are lawfully made and can be resold now under section 109. This doesn't help to get the taped broadcast available for everyone to see, but it's better than the ridiculous status quo.

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  70. identicon
    Anonymous Coward, Feb 7th, 2016 @ 12:43am

    Re: Re: Re: Re: Re: Re:

    … to find that the broadcast was copyrighted under federal law…
    Show me a copyright registration. I haven't searched for one. But I won't be surprised if there isn't one. I'm not going to assume it.

    So, can you get to “lawfully made under this title”, if the tape was made before the current § 109 was enacted —and made unlawfully under Pennsylvania law?

    Or if the tape was made contrary to the law of some other state? I don't know which state Martin Haupt actually worked in, before the tape was stored in an attic eight years after its creation.

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  71. identicon
    Anonymous Coward, Feb 7th, 2016 @ 2:02am

    Re: Re: Re: Re: Re: Re:

    … according to the Times article, it isn't clear whether the author of the work, in this case the TV network, made a copy.
    The Sports Illustrated bit claims that the networks made a kinescope.

    I've been looking at a number of the CATV and other retransmission and public performance cases. In at least one case, post 1978, the accused infringers did claim that they were receiving the network feed from the satellite before commercials were added and that second feed recorded by the network for copyright purposes. The court found that technical fact irrelevant under the 1976 act.

    Under the 1909 act, would it matter if the live feed was broadcast, and the network made their copies from essentially the same feed as the accused copy? If two people make the same motion picture (other than a photoplay) using the same camera, and the same lens, at the same time, but each using different film…?

    “(1) ownership of a valid copyright, and (2) copying …”

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  72. identicon
    Anonymous Coward, Feb 7th, 2016 @ 2:36am

    Re: Re: Re: Re: Re: Re:

    … it was likely not imagined that anyone in the nationwide home audience would even have the ability to record it.
    A factoid from Judge Ferguson's opinion:
    Before Betamax, as early as 1965, Sony manufactured other videotape recorders — some of them with built-in adapters and tuners and others without.
    Where did Martin Haupt work? Did he work at a television station?

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  73. identicon
    cpt kangarooski, Feb 7th, 2016 @ 9:09am

    Re: Re: Re: Re: Re: Re: Re:

    Show me a copyright registration.

    What for? It was publication without notice that dumped a work into the public domain. Failure to register was not good, but also not fatal for the original term, and being from 1967, it wouldn't've needed to renew due to the 1976 Act.

    The Sports Illustrated bit claims that the networks made a kinescope

    Okay, this means it is a writing. The remaining questions are 1) whether under federal law under the 1909 Act it was published (and if so whether as a factual matter it had notice); 2) if it was not published, whether it was protected by Pennsylvania state copyright law at the time; and 3) if it was published with notice, or unpublished (as publication without notice means public domain), whether the taping was fair use. Note that federal fair use precedents at least as of the time of the taping, and maybe later, should apply as fair use is based to some extent in the First Amendment.

    Or if the tape was made contrary to the law of some other state? I don't know which state Martin Haupt actually worked in, before the tape was stored in an attic eight years after its creation.

    Further research indicates that he made the tape in Pennsylvania. He worked at a business called Forgflo in Sudbury, PA. The firm repaired commercial video recorders used in the TV industry. He apparently made tapes of tv broadcasts all the time as a part of his job, to test the machines. It's possible that he viewed this as being a chance to clock in some time at work and watch football and get paid for it, and then kept the tape. He's long dead and doesn't seem to have told anyone his motives, so we can only guess.

    Under the 1909 act, would it matter if the live feed was broadcast, and the network made their copies from essentially the same feed as the accused copy?

    Same camera ought to do, unless the claim of copyright is premised entirely on editing that differs between the copies. However the NBA case mentioned elsewhere in this thread suggests that it might not have been copyrightable at all at the time. I think the 1976 Act got it right on that front but that's not helpful for this unusual case.

    Before Betamax, as early as 1965, Sony manufactured other videotape recorders — some of them

    Sure. Ampex had videotape recorders out in 1948. But only a handful of people had the money and interest in having one personally. (Such as Bing Crosby, but he was an early investor). The consumer market didn't really kick off until the mid-late 70s. It's like how you could buy a home computer before about the same time, you just needed a hell of a lot of money.

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  74. identicon
    Anonymous Coward, Feb 7th, 2016 @ 1:50pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    2) if it was not published, whether it was protected by Pennsylvania state copyright law at the time;
    Case 2) splits into two sub-cases depending on whether the network (optionally) applied for federal copyright in a work that was not published by vending copies.
    § 12. Works not reproduced for sale

    Copyright may also be had of the works of an author, of which copies are not reproduced for sale, by the deposit, with claim of copyright . . .
    Unpublished works were eligible for federal copyright under the 1909 act. Even though I think it rather unlikely that either the league or the network applied for copyright under § 12, it's still possible.

    Additionally, if a federal copyright was obtained in an unpublished work under the 1909 act, did that extinguish state copyright? (I thought I knew that answer to that, but now I think I may have been mistaken in that belief. Would it have extinguished a state unfair competition claim? Or breach of duty? or confidence?)

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  75. identicon
    Anonymous Coward, Feb 7th, 2016 @ 2:35pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Unpublished works were eligible for federal copyright under the 1909 act.
    Patterson v Century Productions (2nd Cir. 1937)
    [A]s the plaintiff did in the first instance comply with section 11, his copyright so obtained was valid for an unpublished motion picture not a photoplay provided the work was unpublished.
    Copyright Law and Practice, by William F. Patry,
    The 1947 Codification

    In 1947, the Copyright Act of 1909, as amended and contained in the Revised Statutes, was codified and enacted into positive law as title 17 of the United States Code. Although no substantive changes were made in the law, some technical clarifications were made to a few sections, a number of obsolete sections were deleted, and many provisions were renumbered, causing countless future researchers headaches. The Copyright Office published a parallel reference table to assist in comparisons.
    (Footnotes omitted, but do see footnote 234.)
    Copyright enactments: laws passed in the United States since 1783 relating to copyright, p.137

    Section 11 in Patterson became codified as section 12.

    reply to this | link to this | view in thread ]

  76. identicon
    Nick Cooper, Feb 9th, 2016 @ 3:55am

    Re: Kinescope

    "... the four reels of 16-mm film were recorded over shortly afterward."

    That's nonsense. You can't "record over" 16-mm film once it already has something on it.

    reply to this | link to this | view in thread ]

  77. identicon
    Anonymous Coward, Feb 10th, 2016 @ 8:05pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    If a federal copyright was obtained in an unpublished work under the 1909 act, did that extinguish state copyright?
    Roy Export v CBS (2nd Cir. 1982), footnote 13:
    A related, but distinct, principle is that a single work cannot be protected from copying under both federal and state law at the same time: the beginning of federal protection marks the end of state protection, even if publication has not occurred. Section 11 of the 1909 Act, 17 U.S.C. § 12 (1976), permits an author of certain limited categories of unpublished works to secure a federal copyright by registration and deposit. Such "section 12" registration extinguishes common-law rights. Photo-Drama Motion Picture Co. v. Social Uplift Film Corp., 220 F. 448, 450 (2d Cir. 1915).


    Photo-Drama Motion Picture Co. v. Social Uplift Film Corp (2nd Cir.1915): 448 449 450
    We do not concur in Judge Hand’s holding that one who has obtained statutory copyright of a book or play has left in him any common-law right in literary property by virtue of section 2 of the act. We think that section is intended only to indicate that the statute does not displace the common-law right. Whoever elects to avail himself of the statute, however, must be held to have abandoned his common-law right.

    reply to this | link to this | view in thread ]

  78. icon
    Dave Cortright (profile), Feb 18th, 2016 @ 10:20am

    Don't sell it, transform then give it away

    IANAL, but if I had a copy of that video, I would do some VH1 "pop up video" edits on top of it along the lines of "did you know this guy killed himself because of the Chronic traumatic encephalopathy he suffered from playing in the NFL?" and "can you believe the NFL thinks the worldwide lifetime rights for this video are only $30k? I guess that limits the damages they could be awarded by a court". Every frame of that video would have some commentary on it obscuring the action in some way and making statements that the NFL may or may not want to be associated with.

    Completely transformative, no money being made, and since the NFL has no market for this particular video, there is no market to impact by its release. Although just to be safe, I'd release it to bittorrent and to servers outside the US, and would not be the actual person who did the work or release it.

    With that being the only copy of Superbowl 1 on the net, how valuable would the NFL suddenly find a clean copy?

    reply to this | link to this | view in thread ]

  79. identicon
    Anonymous Coward, Mar 5th, 2016 @ 3:52am

    Troy Haupt wants a million dollars?


    I'll bet $1 million that there are a thousand people out there willing to pay him $1 thousand just to sit on his couch to shoot the breeze and watch tv, even though he only plays digitized versions of old tapes.

    reply to this | link to this | view in thread ]

  80. identicon
    Anonymous Coward, Mar 7th, 2016 @ 4:58pm

    Re: Re: Juice worth the squeeze

    And explicitly selling the video for $1 million makes it very easy to prove $1 million in damages.




    Are you saying they can't make that sale now because he did? Let them sell it first then.
    Are you done selling your copies? Okay I am selling mine now.

    reply to this | link to this | view in thread ]


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