There’s Just One Known Recording of the First Super Bowl Broadcast, and the NFL Wants to Keep a Man From Selling It

There is only one known recording of the original broadcast of Super Bowl I. It belongs to Troy Haupt, a middle-aged nurse in North Carolina who wasn’t alive when the game was played. His dad taped it at work on a Quadruplex video machine, and eight years later, as the man was dying of cancer, he gave the reels to his ex-wife. “He said maybe they could help pay for the kids’ education,” she told The New York Times, which just ran a fascinating story about the tapes.

The reels spent a few decades deteriorating in her attic before Haupt arranged for the Paley Center for Media to restore them. Meanwhile, the networks wiped their own recordings of the broadcast. (The first Super Bowl was televised by both CBS and NBC; the surviving recording comes from CBS.) The National Football League recently reconstructed the game from NFL Films’ original footage, and that aired on cable last month.

Haupt offered to sell the tapes to the league for $1 million. The NFL offered $30,000 instead, then decided that it didn’t want to purchase them at all. That’s fine: No one is obliged to buy an old recording of a football game, and this one isn’t even a complete recording. (Halftime and a chunk of the third quarter are missing, as are some bits around the commercial breaks.) What’s not so fine is that the NFL is trying to keep Haupt from selling his artifact to anyone else.

I’m not convinced the league is on solid legal ground here, but the Times writer seems to think it is. Here’s how he describes the situation:

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….

A letter from the league to [Haupt’s attorney Steve] 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.”

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 points out at The Volokh Conspiracy, there are three problems here:

1. The NFL does not own the “game information.” It owns the broadcast. Not a major point, but worth noting.

2. Under the first sale doctrine, “the owner of a particular copy lawfully made under [the 1976 Copyright Act], 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.” And in 1984, the Supreme Court ruled that private noncommercial video recordings are indeed lawfully made. Post acknowledges that “a 1984 case construing the 1976 Copyright Act has a somewhat uncertain application to events taking place in 1967.” But he adds that he’d “much, much rather be arguing Haupt’s side of that case than the NFL’s, if it came to that.”

Needless to say, this does not mean that the law allows Haupt to make a bunch of copies of his recording and sell those. But it does mean he can sell the specific tapes he inherited, much as one can sell a paperback to a used bookstore or an LP to a music shop.

3. Haupt can’t be held liable for copyright infringement that takes place after he sells the recording. (Yes, of course: If he went on to participate in some sort of infringement after the sale, he’d be on the hook for that. But he wouldn’t be held liable simply for selling it.) The NFL’s claim to the contrary is, in Post’s words, “just bluster, the sort of nonsense that we see all too frequently these days from copyright owners.”

Enough about the law; how about the recording itself? I haven’t seen it, but based on the Times‘ description, I want to:

The recording is a relic that shows the signs of exposure to the heat and cold in the attic in Shamokin. Colors fade in and out. The picture is grainy and skips. And it suffers somewhat from [Haupt’s father’s] decision to stop or pause before most commercial breaks and hitting play when the break ended, which caused him to miss parts of the action when play resumed. The stops and starts give the tapes an occasional herky-jerky feel.

And more important, he did not tape halftime and about half of the third quarter.

“It’s like he thought he would run out of tape,” Troy Haupt said.

But it is still a viewable document, a vintage broadcast by CBS….A 1960s sensibility is preserved, helping to separate the tape from the NFL Films reconstruction.

Each replay is labeled “Video Tape” and each slow-motion shot is noted as “Slow Motion.” The effect continues with network promos; an ad read by [CBS sportscaster Jack] Whitaker (United States savings bonds that were recommended by President Johnson) and the commercials Haupt did not cut out (like the anchorman-like announcer promoting the taste and other benefits of True cigarettes).

As the game entered its final seconds, Whitaker started to count down. “Nine, eight,” he said, and the game ended. A marching band ran onto the field. It played “Seventy-Six Trombones.”