Once upon a time, long before the National Football* League owned a whole day of the week, the first Super Bowl was played on January 15, 1967. A young broadcaster named Frank Gifford helped call the historic game for millions of people watching on CBS and NBC affiliates. Considering its instant success, one would think that the NFL preserved the broadcast — and if not the NFL, surely either CBS or NBC must have archived the game.
They didn’t. For decades, an integral part of contemporary NFL “mythology” included tales of the lost broadcast of Super Bowl I. Enter Martin Haupt, an electronics technician at RCA who built and refurbished recording equipment. Using a tape recorder that used “two-inch, Quadruplex” tape (the first practical and commercially successful analog recording videotape format), Haupt seems to have been the only person in America who recorded Super Bowl I. He held on to the tapes, not doing anything with them, until he became terminally ill and his son, Troy, ended up with them.
After someone told Troy Haupt that the recording was worth $1 million, he tried to sell it to the NFL. The NFL came back with an offer of $30,000 — probably a fraction of what each team spends on x-rays. Haupt turned down the offer and was subsequently approached by a third party interested in making a documentary film that would include the footage.
The NFL heard about the potential sale and threatened Troy Haupt with a copyright infringement lawsuit.
Admittedly, I don’t know much — but it seems to me that the NFL would face an uphill battle enforcing its purported copyright. “Fixation” is a requirement for obtaining a copyright. Under the Copyright Act, a work is fixed in a tangible medium of expression “when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ . . . if a fixation of the work is being made simultaneously with its transmission.” 17 U.S.C. §101.
The NFL does not possess — or have custody or control — of anything tangible (which could include analog or digital) to send to the U.S. Copyright Office by which they could get registration. As I wrote in March of 2019, the Supreme Court ruled that a plaintiff asserting copyright infringement must have a copyright registration in order to commence a lawsuit.
Equally as important: the NFL apparently never “fixated” the transmission of the first Super Bowl in any tangible medium. Now, I understand there are cases where a court directs that a unique work — say, a sculpture — be sent to the author for the purpose of registering the work’s copyright. But in this case, the NFL is not the author of any video of the game. So, Haupt’s “copy” is not, in fact, a copy of an original that was ever in the NFL’s very large hands.
And as far as the game itself, that would seem to be a “performance” of Super Bowl I. I don’t know how the NFL could assert that any such performance is subject to copyright protection. What the players did was not subject to any pre-arranged script or other “fixed means of expression.”
The NFL is no stranger to aggressively protecting its intellectual property. I don’t know whether its legal department would agree that it doesn’t have a case, but is instead relying on intimidation — also known as an in terrorem deterrent. Considering the merits of the case, it may be worth Troy Haupt’s time and money — and perhaps the money of a crowd-funded litigation fund — to defend his rights as the owner of the only recording of Super Bowl I. Alternatively, he could be proactive and sue to get a declaratory judgment that he, and he alone, owns both the coveted recording and its underlying copyright.
*American football, that is.
