A Super-Suggestion for the NFL

Every year about this time, the NFL earns itself some bad press for busting some small bar or local group for using the word "Superbowl" rather than that catchy phrase "the big game on the first Sunday in February down in Miami."  This year, the bad press honor goes to the NFL for shutting down a party at a church in Indianapolis for having a screen too large.  (Hey NFL!  I am breaking the law!  I have a 110" front projection TV, twice the "legal" 55-inch limit, and I am showing the game on it at my party.  HA HA HA!).  And by the way, what lapdog legislator wrote this law for them, and did he get Superbowl tickets for life?

Now, I understand the situation with copyrights - if you don't defend them vigorously and even-handedly, you can lose them.  I seem to remember Exxon or some other chemical company lost the rights tot he name Formica when they let it be used too generically for counter-top materials.  And the NFL PR people use this defense every year, saying "we really don't want to shut down these folks, but we have to." 

I don't agree that individual words should be copyrighted such that their use in a broad range of contexts should be illegal.  I am fine saying that I can't create another peanut butter and call it "Jif."  I will accept P&G has some sole right in this country to that use.  However, I don't think P&G can tell me that I can't advertise a "Jif party" feature their peanut butter.  In the same way, I am willing to grant the NFL exclusive use of "Superbowl" to describe a sporting event, but I don't think that should restrict me from advertising that people should come to my bar to watch the Superbowl.  And just to add one more example so I have a "threepeat," I don't think Pat Riley should have any ownership in that word.   However, since copyright law is not going to change tomorrow, I will offer up a more modest change.

So here is my suggestion.  The NFL needs to offer a one time use license each year for a bar or other establishment to hold a Superbowl party and actually use Superbowl in the promotion.  The license would of course be non-exclusive, and would carry a myriad of restrictions on how you use the name, etc.   The license could be purchased for a price that would be cheap for a business, maybe $200, and could be purchased right over the web.  It would actually be easier, I think, to go after violators because the NFL could point to the existence of a legal licensing program the violator could easily have participated in.  I would think they could easily bring in a couple of million dollars, not to mention saving them enforcement money and PR headaches.

PS-  Welcome to the NFL intellectual property department.  I presume I included enough verboten uses of "Superbowl" to catch your search engine's attention.

PPS-  My Firefox spell checker (which I love!) does not have "Superbowl" in it.  I wonder, would the NFL consider it a copyright violation for a program to use the word "Superbowl" in its dictionary?

  • BobH

    Interesting that they can copyright "superbowl" when the name is "super bowl".

    Interesting also that they vigorously opposed use of the term in the first years of the game's existence.

  • dan

    You are incorrect about the need to defend copyrights. Both copyright and patent infringement can be prosecuted arbitrarily by the holder. It is trademarks that must be vigorously defended in all cases or the holder risks losing them. The product name "Formica" would be a trademark, not a copyright.

  • I have to wonder whether their extreme defense might devalue the term more than a liberal fair use policy would.

  • I think you may be confused about copyright vs trademark. The word superbowl is trademarked so you can't use the word superbowl to describe your own soccer championship. The claim that you can't call your superbowl party a superbowl party seems a bit silly, but I can see why that makes sense. The problem with the church, however, is one of copyright. It is illegal to show a copyrighted work in a "public environment" without a license. Ie if I buy a DVD and then show it in a movie theatre to random people, that would be a violation of the copyright. The superbowl's claim is that if you have a screen smaller than 55 inches, then it is a private showing, whereas a larger screen is a public showing. That is a pretty dubious distinction, but it is a different claim than the trademark one.

  • dearieme

    What if a pub holds a "Superbowel" party?
    Or "Soopahbowl"? Or "Superbole"? or "Sooperbowl"?

  • Anon E. Mouse

    Basically, its a size and type of establishment requirement, even if for free. The law as drafted by your friendly lobbyist.... We're in (5)(B)(i)(II) below:

    ----------------------
    17 USC sec. 110: "Notwithstanding the provisions of section 106 [which lists the general CR violations], the following are not infringements of copyright:"
    ...
    (5) (A) except as provided in subparagraph (B), communication of a transmission 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--
    (i) a direct charge is made to see or hear the transmission; or
    (ii) the transmission thus received is further transmitted to the public;
    (B) communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if--
    (i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) 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;

  • Other commenters have said it...it's a trademark thing. People defending patents and copyrights have the option of being reasonable, but trademarks are different. If you don't behave like a total and utter jackass, persecuting every person or group who even the most demented IP lawyer thinks could possibly be found liable for trademark infringement by the most brain-dead jury in America, you run the risk of losing the right to sue the people who really are guilty of deliberate substantive infringement. Only in trademark law is judicious discretion considered synonymous with abandonment.