Yes, you can record Sunday's game. And you can talk about it.
In lieu of the big game today I thought it only appropriate to share some tidbits of info on the NFL and #SB49
by Sherwin Siy, Public Knowledge Jan 31 2015, 10:14am PST
The Super Bowl is the NFL’s flagship event each year, and the league has invested a lot in the event’s branding and broadcasting. In light of that investment, it’s understandable that the NFL would be protective of its trademarks and copyrights surrounding it. But that protectiveness has led to the NFL, and other businesses around it, perpetuating a number of myths about what you can and can’t do with the Super Bowl—including the words “Super Bowl.”
Saying “Super Bowl” in an ad
We’re already being bombarded by ads from sports bars, grocery stores, fast-food chains, and countless other companies tying their ads in to “The Big Game.” It’s a completely ridiculous circumlocution that just draws attention to itself and the absurdity that is trademark law. Obviouslythey’re talking about the Super Bowl; they’re clearly not talking about the Cal-Stanford game, or a high-stakes poker match, or a rugby match in Twickenham.
Conventional wisdom is that advertisers are avoiding calling a Super Bowl a Super Bowl because they don’t want to infringe on the NFL’s trademark in the name. But if that’s the case, it’s because the advertisers are being overly cautious, not because they’d actually be doing anything illegal.
The core purpose of trademark law has always been to identify the source of goods—to make sure that some competitor doesn’t try to pass off its goods as the genuine article. Over the years, that original purpose has been added to and supplemented with other theories, but its fundamental aim remains the same: keeping consumers from being fooled as to whether or not the trademark owner is making or endorsing the person using the trademark without permission.
This doesn’t mean that people are barred from using trademarked terms, though. Burger King can use the terms “McDonald’s” and “Big Mac” in its ads to refer to its competitor; movies and TV shows can use and display products without permission—if they make fake brands or blur them out, it’s either out of an excess of caution or in the hope that brands later become sponsors.
No one is going to think that your local grocery is offering sales on chicken wings and Doritos because they’re sponsoring the Super Bowl or are representing the NFL. They’re saying “Super Bowl” because that’s how human beings refer to this Sunday’s broadcast of the National Football League’s championship game. And they’re allowed to speak like human beings, just like you and I are free to talk, tweet, and text about the game.
Taping, describing, or even talking about the game
The NFL has a strange take on what people can do with the broadcast of the game, too. If you’ve watched enough football, you’ve undoubtedly seen this odd little clip:
The voiceover in the clip says:
"This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited."
That second sentence is bunk from a legal standpoint. It is not illegal to describe or give an account of one of the biggest media events of the year. You can talk about the Super Bowl without infringing copyright. This is not a case of the NFL politely looking the other way while most of America, in public and private, in casual conversations and in commercial broadcasts, discusses the game without the NFL’s permission. The NFL would be laughed out of court for trying to prevent them from doing so—just because you have a copyright in a work doesn’t mean you can prevent people from talking about it. Copyright simply doesn’t extend that far.
The NFL is also drastically overstating its case when it comes to actual copies of the game or pictures coming from it. You can record the Super Bowl. It’s been undeniably, unquestionably legal since 1984 that you can record the broadcast to watch later (and skip commercials, if you’re so inclined). And the fair use doctrine that allows you to do this also lets you use those recordings for other purposes, too. If you want to use clips for commentary or criticism or news reporting of some aspect of the game or the broadcast, that’s perfectly legal, too.
But the NFL has been using that disclaimer, or some form of it—basically miseducating America about copyright law—for years. Some years ago, one group actually complained about the broadcast of these falsehoods to the Federal Trade Commission, but didn’t get too far.
In fact, the NFL has overreached so far on this in the past that when copyright professor Wendy Seltzer posted a video clip of that very disclaimer in order to critique it, the NFL sent a takedown notice to remove the clip from YouTube. After several rounds of irony-deficient messages back and forth, the clip was reinstated, and thus your ability to see it and its successors today remains un-prohibited by the NFL and copyright law.
So if you find yourself hesitating about recording The Big Game because of the example set by the NFL and scores of advertisers, you can just relax. You can tape the Super Bowl. You can call it by its actual name. And you can discuss it all you want at the water cooler the next day. The law can’t stop you—no matter what the NFL says.
Sherwin Siy is the vice president of legal affairs at Public Knowledge.