That famous football game

[Mike Blakesley]

So, would it be legal for me to hook up a tuner to my projector and play the Super Bowl and let people watch it for free? I mean, every bar in the world does it, are bars paying for that privilege?

[Frank Cox]

They do indeed pay for it.

https://tvanswerman.com/2021/10/19/n...staurants-pay/

TV Answer Man, I read your article about the next contract for the NFL Sunday Ticket that said the NFL may need DIRECTV to continue providing service to bars and restaurants. Is there really that much money in that business? Couldn’t the NFL just do without the bars and restaurants and go all streaming to the home? — Bob, Toledo, Ohio.

Bob, DIRECTV has been providing the Sunday Ticket to bars and restaurants for a few decades and therefore is best positioned to continue that service in the future. That doesn’t mean the bars and restaurants couldn’t get a streaming edition of the Ticket if that was all that was available, but it could create a number of complications, including safeguarding the stream against piracy as well as offering streams of games that run 30-60 seconds behind those on cable and satellite.

The satcaster is also best suited to deliver the Sunday Ticket to rural residents, many of whom don’t have access to reliable high-speed Internet service. (Some reports say as many as 40 million Americans fall into this category.)

So there’s little doubt (to me anyway) that the league would like DIRECTV to at least continue providing the Ticket in rural areas, and to bars and restaurants.

But is the bar/restaurant revenue significant enough to influence the NFL’s decision regarding who should get the next Sunday Ticket contract? (DIRECTV’s exclusive agreement for the Ticket expires after the 2022 season.)

We don’t know how many bars and restaurants actually subscribe to the Sunday Ticket, but we do know how much they pay if they do and it’s significant. According to DIRECTV’s web site, a bar/restaurant with a Fire Code Occupancy (FCO) of 101-200 must pay $6,000 a season for the Ticket. Owners of establishments with a FCO of 201-350 must pay $8,500; those with 351-500 must pay $12,350 while those with places that can serve 501-750 people must pay $13,700.

The rate goes even higher: If you have a bar/restaurant that can serve 751-1000 people, you would have to pay $19,000 for the Sunday Ticket; $28,125 for a place with a FCO of 1,001-1500; and $37,500 for an establishment with a FCO of 1,501 to 2,000.

Finally, if you have a mega place that can serve between 2,001 and 5,000 people, you’ll need to fork over $78,000!

You can see from those figures that the bar/restaurant business can be quite lucrative, and not one to easily dismiss as I see some industry analysts do. That’s why I believe it will be an important factor in the league’s ultimate decision on how to award the next contract. The NFL will need a ready-made plan to serve the bar and restaurant crowd as well as home viewers.

Bob, hope that helps. Happy viewing, and stay safe!

[Mike Blakesley]

We don’t know how many bars and restaurants actually subscribe to the Sunday Ticket, but we do know how much they pay if they do and it’s significant. According to DIRECTV’s web site, a bar/restaurant with a Fire Code Occupancy (FCO) of 101-200 must pay $6,000 a season for the Ticket. Owners of establishments with a FCO of 201-350 must pay $8,500; those with 351-500 must pay $12,350 while those with places that can serve 501-750 people must pay $13,700.

Hmmmmm, well there are two bars here (on our block in fact) that each could easily seat 250 people. Given the amount of traffic the bars around here get, I would guess it's more likely they have the cheapest Dish Network subscription they can get and they just tune into the local channel to get the game. I could be wrong though.

[Marcel Birgelen]

I guess the chances of getting caught are pretty slim, as long as you keep it low-profile... As a cinema, I'd be a bit more careful. The excuse that someone flipped around the channel is probably a flaky one for any given bar, but will be even more unbelievable in case of a venue like a cinema.

[Martin McCaffery]

I don't know what the NFL's current thinking is, but at one time they limited public screenings to screens 55 inches (or whatever the biggest wide screen tv was at the time). Showing it in a movie theatre was just a big no. Things may have changed, but I suspect not. It comes down to whether you think the NFL will be less diligent than the mouse.

Here's a lawyer's take from 2013: https://www.bowie-jensen.com/2013/01...r-bowl-sunday/

[Mike Blakesley]

I'm kind of surprised that the NFL hasn't reached out to theaters, actually. Considering theaters are desperate to get butts in the seats, and there are probably more screens available for such an event than ever before, it seems like it could be a great partnership. But, I suppose doing such a thing would piss off all the bars and such that are already paying through the nose to show all of the games, so it would probably never happen.

[Harold Hallikainen]

I don't know what the NFL's current thinking is, but at one time they limited public screenings to screens 55 inches (or whatever the biggest wide screen tv was at the time). Showing it in a movie theatre was just a big no. Things may have changed, but I suspect not. It comes down to whether you think the NFL will be less diligent than the mouse.

Here's a lawyer's take from 2013: https://www.bowie-jensen.com/2013/01...r-bowl-sunday/

That's an interesting article. It is about license-free use of the content. I see nothing that would prevent them from licensing the content to theaters (or perhaps broadcasters could sub-license it). But, it's all in the business arrangements. I really don't think the television audience reduction by having licensed performance in theaters would be significant, and the NFL or broadcasters could make some money on it. But, it might not be enough for them to trouble with it. But, could something like that be the same as a $50 million box office on a movie?

Harold
(not a sports fan)

[Marcel Birgelen]

I'm kind of surprised that the NFL hasn't reached out to theaters, actually. Considering theaters are desperate to get butts in the seats, and there are probably more screens available for such an event than ever before, it seems like it could be a great partnership. But, I suppose doing such a thing would piss off all the bars and such that are already paying through the nose to show all of the games, so it would probably never happen.

Do you have a liquor license? If so, it might actually just work, as long as you can legally license the show. About a year or 15 ago already, we did a limited run soccer matches on the big screen. The quality was still relatively miserable (720p picture on a non-DCI big-venue projector of the time), but it worked pretty well. Entrance was free, but the beer and concessions certainly made up for it...

[Mike Blakesley]

No liquor license here. My wife and I just might have our own little SB party and invite a few friends in, and arrange the movie schedule around the game. We've been wanting to do that for a long time and since there aren't any blockbusters set for that weekend (at the moment, anyway) this might be a good year to try it.

[Mitchell Dvoskin]

As the court case against clothing retailer The Gap was never appealed, as far as I know it is still law. Essentially, The Gap was playing over the air commercial radio in their stores, and the court ruled that because they were using a commercial (not consumer) sound system it was a copyright violation.

https://law.justia.com/cases/federal/district-courts/FSupp/516/923/1579606/

US District Court for the Southern District of New York - 516 F. Supp. 923 (S.D.N.Y. 1981)
February 3, 1981

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516 F. Supp. 923 (1981)SAILOR MUSIC, Wow and Flutter Music, Quackenbush Music, Ltd., WB Music Corp., Jobette Music Co., Inc., Black Bull Music, Inc. and Gladys Music, Plaintiffs,
v.
THE GAP STORES, INC., Defendant.No. 79 Civ. 0059.United States District Court, S. D. New York.
February 3, 1981.Bernard Korman, New York City, for plaintiffs.
Weil, Gotshal & Manges, New York City, for defendant; Robert Sugarman, New York City, of counsel.

MEMORANDUM DECISIONGAGLIARDI, District Judge.
Plaintiffs in this copyright infringement action are seven copyright owners and members of the American Society of Composers, Artists and Performers ("ASCAP"), seeking monetary damages and injunctive relief against defendant The Gap Stores, Inc. ("The Gap") for the transmission via stereo apparatus in Gap stores of plaintiffs' copyrighted compositions. This action arises under the federal copyright laws, 17 U.S.C. § 101 et seq. Pending before the court are the parties' cross-motions for summary judgment pursuant to Rule 56, Fed.R. Civ.P.

Statement of FactsThe relevant facts may be briefly stated. The Gap is a well-known chain of approximately 420 clothing stores with 1979 revenues of nearly $300 million. It is The Gap's policy to transmit for the enjoyment of its customers radio programs by means of radio receivers connected to recessed loudspeakers arranged so that the music is audible throughout the stores. The allegedly infringing acts at issue here occurred on September 27, 1978, at two Gap stores located in New York City at 354 Sixth Avenue *924 and at 22 West 34th Street. Defendant does not deny that on that date radio programs featuring plaintiffs' copyrighted songs were played at those locations. In each of the stores the speakers are recessed behind wire grids in the store's ceiling and are connected to the receiver by built-in wiring. There are four speakers at the Sixth Avenue store and seven speakers at the 34th Street store. The size of the Sixth Avenue store is 2769 square feet; the size of the 34th Street store is 6770 square feet, with a selling area open to the public of 4,690 feet. The average size of all Gap stores is 3500 square feet.

Discussion17 U.S.C. § 106(4) grants copyright owners the exclusive rights publicly to perform, or authorize the performance of, their copyrighted works. 17 U.S.C. § 101 broadly defines "perform" to include the rendition or playing of a work "either directly or by means of any device or process." Pursuant to those provisions of the copyright laws, plaintiffs, through ASCAP, receive licensing fees from radio stations for the performance of their copyrighted works. ASCAP now claims that the further transmission or performance of its members' copyrighted works via radio receivers in The Gap's retail stores constitutes copyright infringement. The Gap argues that its use is protected by 17 U.S.C. § 110(5) which exempts from the coverage of Section 106(4) any

communication of a transmission [e. g., a radio or television broadcast] embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless

(A) a direct charge is made to see or hear the transmission; or

(B) the transmission thus received is further transmitted to the public.

The issue in this lawsuit is whether defendant's allegedly infringing use of plaintiffs' copyrighted songs is exempted by section 110(5). To be exempted, The Gap must satisfy three requirements: (1) its apparatus must be "of a kind commonly used in private homes;" (2) no direct charge may be made to listen to the performances; and (3) the transmissions once received may not be "further transmitted to the public." Plaintiffs do not contend that The Gap directly charges its customers for listening to the performances; the court's inquiry therefore focuses on the first and third requirements. The reach of these provisions of section 110(5) has scarcely been tested in the courts. The legislative history, though, enables the court to ascertain what Congress intended by exempting performances via "commonly used" stereo equipment unless "further transmitted to the public."
Prior to the enactment in 1976 of the new copyright laws, the Supreme Court in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 95 S. Ct. 2040, 45 L. Ed. 2d 84 (1975), exempted under the 1909 copyright laws the owner of a fast-food store in Pittsburgh who kept a radio receiver with four speakers in the ceiling turned on throughout the business day. The size of the restaurant in the Aiken case was 1055 square feet, with a commercial area open to the public of 620 square feet. The House Committee sponsoring the 1976 Copyright Act expressly considered the Aiken decision, stating that the basis of the decision "is completely overturned by the present bill and its broad definition of `perform' in section 101." H.Rep.No.94-1476, 94th Cong., 2d Sess., 87 (1976), U.S.Code Cong. & Admin.News 1976, p. 5659, 5701. The Committee proceeded to explain (and, due to its importance, this portion of the House Report is quoted at length):

Under the particular fact situation in the Aiken case, assuming a small commercial establishment and the use of a home receiver with four ordinary loudspeakers grouped within a relatively narrow circumference from the set, it is intended that the performances would be exempt under clause (5). However, the Committee considers this fact situation to represent the outer limit of the exemption, and believes that the line should be *925 drawn at that point. Thus, the clause would exempt small commercial establishments whose proprietors merely bring onto their premises standard radio or television equipment and turn it on for their customers' enjoyment, but it would impose liability where the proprietor has a commercial "sound system" installed or converts a standard home receiving apparatus (by agumenting [sic] it with sophisticated or extensive amplification equipment) into the equivalent of a commercial sound system. Factors to consider in particular cases would include the size, physical arrangement, and noise level of the areas within the establishment where the transmissions are made audible or visible, and the extent to which the receiving apparatus is altered or augmented for the purpose of improving the aural or visual quality of the performance for individual members of the public using those areas. U.S.Code Cong. & Admin.News 1976, p. 5701.

Applying this standard to the instant case, it is clear that Congress did not intend to exempt establishments such as The Gap. First, The Gap stores, with an average size of 3500 square feet, are substantially larger than the public area of 620 square feet in the fast-food store at issue in Aiken. By virtue of the size of The Gap stores, the radio transmissions received on the radio receivers and played via the recessed loudspeakers are "further transmitted to the public." In addition, the stereo apparatus used by the specified Gap stores, including built-in wiring and four or seven loudspeakers recessed in ceiling cavities, may be considered to be "standard home receiving apparatus [converted] (by augmenting it with sophisticated or extensive amplification equipment) into the equivalent of a commercial sound system." H.Rep., supra, at 87, U.S.Code Cong. & Admin.News 1976, p. 5701. There is a factual dispute between the parties' experts as to whether or not the particular components used in these two Gap stores are actually "commonly used in private homes," and consequently the court cannot grant summary judgment on this basis. Nevertheless, the rather elaborate sound system developed by The Gap, in conjunction with the size of the stores, places The Gap beyond the section 110(5) exemption.
This conclusion is further supported by the following statement in the Conference Report:

It is the intent of the conferees that a small commercial establishment of the type involved in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, [95 S. Ct. 2040, 45 L. Ed. 2d 84] (1975), which merely augmented a home-type receiver and which was not of sufficient size to justify, as a practical matter, a subscription to a commercial background music service, would be exempt.

H.Rep.No.94-1733, 94th Cong., 2d Sess., 75 (1976), U.S.Code Cong. & Admin.News 1976, p. 5816. It is clear on the basis of the uncontroverted affidavits of background music suppliers submitted by plaintiffs that The Gap is "of sufficient size to justify, as a practical matter, a subscription to a commercial background music service."
The court therefore concludes that The Gap is not the small commercial establishment whose reception and performance of radio transmissions via commonly used stereo equipment Congress intended in section 110(5) to exempt from the category of copyright infringing uses. Plaintiffs' motion for summary judgment is granted. Defendant's motion for summary judgment is denied.
Defendant's infringing use of plaintiff's copyrighted works is hereby enjoined. Submit judgment.
So Ordered.

[Scott Norwood]

So, he could get a regular home TV set, put it in the theatre, and use it to show the Big Game (tm) (r) (c), but showing said Big Game on the movie screen would be a violation? I'm not arguing this...just amused at how weird and arbitrary this stuff is. Especially since I've seen movie screens that are smaller than some TV sets.

[Martin McCaffery]

Scott: Essentially, it seems, yes, with caveats.
Based on the article I posted earlier if your building is under 3,750 gross square feet , your screen is under 55 inches and you don't use more than 4 speakers and 4 tv screens (I think a lot of bars are in violation of the last one, but I don't go to sports bars)
As far as I can tell, the NFL (not the copyright code) has stated publicly that they will allow their copyrighted material to be used publicly under the above conditions. I assume they have the right to rescind it at any point. And this may not apply to other sports ball broadcasts.

[Mike Blakesley]

My wife and I were talking about this the other night. We could have a big super bowl party in our house, and even put a large sign in the yard saying "SUPER BOWL PARTY!" and get 100 people inside (which we'd probably have to have a few looking in the windows) and that would be perfectly fine (as would using any movie in creation), but doing the exact same thing in the theatre will get me the electric chair or something. As that famous comedian Yakoff Smirnoff said, "What a country."