
Out of a Rare Super Bowl I Recording, a Clash with the N.F.L. Unspools - BWStearns
http://www.nytimes.com/2016/02/03/sports/football/super-bowl-i-recording-broadcast-nfl-troy-haupt.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region&region=top-news&WT.nav=top-news
======
cjensen
On a technical note regarding archiving: the tape is Quadraplex[1]. Quad was
the first video tape format and was replaced by much
cheaper/smaller/quieter/better helical-scan tape. Very few Quad machines still
function, and as far as I know there is exactly one guy[2] who refurbishes
them. (I worked under him for a summer job in college 25 years ago when Quad
was already long obsolete). Not sure if anyone will take up that business once
he retires.

Makes an interesting real-life example of the problem with archiving anything
for a long period of time.

[1]
[https://en.wikipedia.org/wiki/Quadruplex_videotape](https://en.wikipedia.org/wiki/Quadruplex_videotape)

[2] [http://www.zinvtrworks.com](http://www.zinvtrworks.com)

------
mcherm
I don't understand why the NFL can say (as the article lays out):

"Haupt owns the recording but not its content, which belongs to the N.F.L. If
the league refuses to buy it, he cannot sell the tapes to a third party, like
CBS or a collector who would like to own a piece of sports history that was
believed to be lost."

Copyright law does not (as far as I understand it) actually give someone
"ownership" of a work. Rather, it criminalizes making copies of the work
without the permission of the copyright owner. But the author of a book cannot
prevent you from selling your copy to a library, a friend, or a rich
collector.

My view would be that Troy Haupt ought to be able to sell his videotape to
anyone he wants (just as he could sell a book). He ought to be able to show
the content to anyone he wants (although a "public performance" is a different
matter). If the NFL complains that the copy was made illegally, then they
should sue Mr. Haupt's father (or his presumably long-settled estate).

Perhaps the legal theory here is that the NFL never authorized the recording
so it's existence is the equivalent of stolen property?

~~~
URSpider94
Copyright law (and not just US copyright law, but international law) is pretty
consistent that people have the right to make copies for archival purposes,
for personal use -- but that they have no right to share those copies with
anyone else.

When you buy a book, you are actually buying a copy. When you videotape a TV
show, you're not buying anything, you are MAKING a copy. That is the critical
difference here. It would be more like if you borrowed a book from the library
and made a photocopy, and then tried to sell that copy to someone else.

I'm not making a moral judgment here, just explaining my understanding of the
law.

~~~
adekok
That's why it's also different from him buying a tape of the game from the
NFL, and then re-selling it.

When you buy a tape, CD, book, etc., you have the right to re-sell it. As-is,
without making a copy.

If his father had been at the game, and recorded it himself on his own video
camera, he would be able to sell that tape. No one else could broadcast it, as
that involves making another copy.

------
DannyBee
One interesting thing to note is that any copyright analysis using today's
acts is possibly wrong :)

These tapes predate the most recent major copyright act (they were made in
1974, the act was passed in 1976).

For example, among other things (i'm lazy and quoting wikipedia, which is
correct in this point): Under the 1909 Act, federal statutory copyright
protection attached to original works only when those works were 1) published
and 2) had a notice of copyright affixed.

If no notice of copyright was affixed to a work and the work was "published"
in a legal sense, the 1909 Act provided no copyright protection and the work
became part of the public domain.

~~~
dnm
I wonder if his copy has a notice of copyright recorded. If not, and the NFL
doesn't have a copy, how can they prove that the notice was affixed during the
broadcast?

~~~
DannyBee
They may have people able to testify that they did it to all copies, etc, but
it will end up a jury question.

------
carlisle_
The NFL consistently demonstrates such a high level of greed it's astounding.
I get it that you don't get rich writing checks, but what happened to doing
right by people and the community at large.

Maybe I'm just wishy washy.

~~~
oldmanjay
In cases like this it's not clear to me which side has the most compelling
greed, so I'm always interested in hearing some reasoning about what makes
your preferred side in the conflict the right one.

~~~
carlisle_
They've offered a sum and refused to negotiate. I think I'd be indifferent
otherwise if the NFL had shown they were willing to negotiate and not dictate
the value of something that would have immense value if there were an open
market.

------
jaynos
Two options: 1\. Offer to destroy the tapes in a manner decided by highest
bidder(s). Perhaps the NFL would act if it knew that the recordings would be
burned for possibly $5. This is the Mark Ecko approach [1].

2.There is a commercial on the recordings for True cigarettes, a brand that
was owned by R.J. Reynolds. If they don't still own that trademark, could he
sell the tapes for that commercial and apologize for the Super Bowl footage
that the purchaser will have to deal with?

If he started a kickstarter for option 1, I bet a lot of people would pitch in
a few dollars just to piss off Roger Goddell (NFL Commissioner).

[1]
[http://m.mlb.com/news/article/2231076/](http://m.mlb.com/news/article/2231076/)

~~~
kenjackson
I agree that a lot of people would chip in for #1. Especially if he does
prominently call out Goddell in the Kickstarter. Could he get more than
$30,000? I'm not sure, but even if not, I feel like it would be worth it.

I think option 2 is way too risky, and those who want the video will want the
SB recording. Those people would still not have rights to air or show it.

------
6stringmerc
Too bad the over-arching discussion is about money, because if Troy Haupt
would ditch the line of trying to get cash for it, there's probably a lot of
wiggle-room in Fair Use to provide the tape to an academic venue as some type
of historical artifact.

Might be good to keep in mind that basically the guy has a "bootleg" copy of
the game and there's no possible future where I see any kind of exemption to
allow bootleggers to profit off of the material they obtained.

~~~
chocolatebunny
If Troy gave the tape to an academic venue, can't the NFL get it from the same
venue and rebroadcast it since they have the rights to it?

~~~
dkokelley
I believe they could, but then anyone view it by going to the same academic
source. Only the NFL could profit from it, but by then the game would be
freely available.

I'm also curious about the reproduction of "the work". If I write a symphony,
that arrangement of melodies and instruments is mine. If you "performed" my
work and recorded a copy of it, that copy is yours. I would probably take
issue with you profiting from this copy without my consent, seeing as I own
the IP rights, but what rights does writing the symphony give me over a
performance of the work. If a school orchestra decides to perform my symphony
and a proud parent records it, how much right do I have to the contents?

The analogy is rough at best. I use it to point out that there was effort in
the production and maintenance of the copy, so the NFL may still not have the
right to broadcast that "private production" without Haupt's consent, even if
it were made public in an academic venue.

This is similar to how a fan's cell phone recording of a play belongs to the
fan, even though he can't go about selling copies. If the NFL got ahold of the
cell phone video, they also wouldn't have the right to broadcast it just
because it's a recording of their IP.

Copyright law gets complicated and I'm certainly no expert. If someone can
correct or clarify any of the above, be my guest.

~~~
6stringmerc
Regarding your reproduction example of the symphony, from my understanding the
composition is protected by copyright from the moment its put to paper (unless
explicity noted as CC or public domain). As a musical composition in the US
under current copyright rules, for anybody to record a performance of that
composition (like a cover song), that entity would have to pay a mechanical
license to you. The public performance is a different issue, by my
understanding, but definitely addresses your IP rights with respect to
compensation. In theory the protections align with your rights as an artist
with respect to the recordings.

You're right that copyright law is complicated - way too much so in my opinion
- and we didn't even discuss whether you would be considered a member of a
collection society (ASCAP/BMI) which would forbid the performance of your work
in any venue which does not have a license from one of those societies! That
comes up every once and a while when some record company finds out a coffee
shop (not paying ASCAP/BMI) is hosting "Open Mic Night!" type events and
people play cover songs by major artists. The coffee shop owners feel like
getting a $2,000+ surprise bill isn't fair, which the societies would
rightfully counter it's not fair for the coffee shop to make money from the
Open Mic Night business without paying for the material that's increasing
their business.

Fun stuff eh!

------
dkokelley
I wonder what other options are available. The NFL owns the content of the
tapes, but Haupt owns the only known copies of that content. Haupt and the NFL
are collectively the owners of the 1st Super Bowl, but can't agree on what to
do with it.

The loss or destruction of the tapes won't meaningfully impact the NFL. They
didn't have a copy of the work beforehand, and so nothing changes if they
don't come to an agreement. On the other hand, a special viewing of the "lost
copy of Super Bowl I" could be very lucrative to the NFL and the airing
network. Haupt has something valuable to the NFL. There is obviously an
incentive for the NFL to make a deal.

What would the ramifications of submitting the tapes to a museum or other
historical archive be? It might incentivize the NFL to make a deal if they
know there is another legitimate course of action that Haupt can take to make
the copy less rare. I'm not sure what the legal implications are.

------
joshuaheard
Get them appraised by an expert. Donate them to a museum. Take a huge write
off on your taxes.

Otherwise, wait another 45 years when the copyright runs out and sell them
then.

------
URSpider94
I originally made this comment on a child post that was deleted while I was
writing it, so I've decided to post on the parent.

Copyright law is so complicated. I'm not a lawyer, but here is what I
understand, I welcome corrections and input.

In general, copyright rights are additive. For example,

* Alice can write a piece of sheet music, on which she owns the copyright

* Bob can then perform that sheet music. He owns the copyright on the performance. However, he can't publicly perform the piece without getting permission from Alice.

* Charlie can then make a recording of Bob's performance. He owns the copyright on that recording. However, he can't sell that copy without permission from both Alice (for the sheet music) and Bob (for the performance).

(I should add here that for music, this process has been greatly simplified in
most cases by ASCAP, which dictates compulsory license fees for public
performance and musical scores for pop music.)

In this case, it's further complicated, because I don't believe that the
simple act of pressing "REC" on a VCR counts as creative input, and therefore
probably doesn't generate a distinct copyright for this tape. Usually, when
people talk about copyright for recordings, they are referring to the case
where a sound engineer has captured the live sound, mixed it, and mastered it,
to create a distinct new work of art.

~~~
6stringmerc
I think you did a great job to demarcate those three facets of copyright law
as I understand them too (not a lawyer, big time IP hobbyist though).

There are two other aspects that might be relevant, and are only presented as
complimentary, not contradictory.

The first is that in that the recording the Engineer is doing is a "Work for
Hire" as I see it. While they may negotiate 'points' of residual income from
the sales of the recordings for their labor/efforts/contributions, the
ownership issue is a lot more simple. The other angle is that 'derivative'
works, especially for Fair Use, have a really high bar to clear in modern
times - but it's possible.

So, if Charlie is a Professor and he recorded Bob's performance of Alice's
work, expressly so he can play one full song as an example in his University
class "The Art of Shredding on a Violin while Playing Harmonica and Jumping Up
and Down Simultaneously," then Charlie's use of the work _should_ fall under
Fair Use, and it doesn't matter the students are paying for the class or
Charlie is paid an income by the institution. He's promoting progress of the
arts and is protected in theory.

------
jedberg
The NFL is greedy, but right. The value of the tapes is 0. The only entity in
the world that can pay money for those tapes is the NFL, which means they are
the entire market and can choose the price.

But this guy is also being greedy. If he wanted the world to have these tapes,
he could give them away to a museum.

Wanting cash for these tapes is basically extortion.

It would be nice if the NFL gave him some money, but I don't see why they
should/would.

~~~
brianberns
Copyright controls only the right to make copies. The owner of the physical
tape should be able to sell it to anyone he wants, since he's not making a
copy.

~~~
URSpider94
Incorrect. He already made a "copy" (maybe we should call it something else: a
recording?) by videotaping the original broadcast. He did not buy a pre-
recorded copy of the tape.

~~~
brianberns
OK, his father broke the law by making the recording, but how does that fact
stop the son from selling the recording once it's been made?

------
FussyZeus
A million dollars is freaking chump change to an organization the size of the
NFL. They're being childish. Just write the dude a check and get your tapes
you big babies.

~~~
arprocter
>A million dollars

1/44th of Goodell's yearly salary

------
csense
Maybe a university archive or a wealthy collector could pay off both the NFL
and this guy, so everybody wins?

------
rocky1138
When I was reading this, and I have no horse in this race, I was asking myself
"What are they afraid of?"

The only possible scenario I can think of is that they actually do have
footage and are keeping it to themselves and essentially waiting until this
third party footage corrodes and fails entirely due to time.

~~~
URSpider94
They are standing on principle. They want to reinforce that recordings of NFL
games have no commercial value under any circumstance, and them forking over
cash for a copy of a recording would make a mockery of that argument.

If they had footage, they would use it, since they are the only authorized
users. This guy's tape would then be completely worthless.

------
mizzao
As someone famously said to Will Smith:

"You're going to war with a corporation that owns a day of the week!"

------
barney54
Maybe the guy who owns the recording is being too greedy, but given the NFL's
track record it's likely the NFL. The NFL should buy the recording and play it
on the NFL Network. That should be a decent draw during the off season or in
the run to to the next Super Bowl.

------
doe88
Wouldn't the copyrights legally expire in 45 years in this case, and the
content be in public domain?

edit: s/70/45/ assuming the expiration delay is 95 years after publication not
120 years.

------
nrjames
Donate them to the Library of Congress?

~~~
DrScump
Indeed -- isn't Congress exempt from copyright law?

And is the Smithsonian then an entity that could legally preserve it if not
display its contents?

------
coldcode
There should be an exemption for historically important footage that trumps
any legal ownership.

~~~
tomswartz07
That's a humongously bad precident to set.

    
    
        You happened to record, using your cell phone, a major news story?
    
        Whoops, sorry. That video is no longer yours.
    

It's far better to fix the Copyright regs that have been so modified recently
that is causing this. Thanks, Disney.

~~~
rhino369
I think an exception for historically important content would be useful. At
the very least historical archiving should be allowed, even if you aren't
allowed to show it until copyright expires.

But that wouldn't really solve this problem. The owner wants to get paid.

