NFL Goes After ODS Wisconsin Cinemas

By Patrick von Sychowski | January 12, 2008 12:10 am PST

As far as show down goes, this is a David v Goliath that puts the might NFL (National Football League) against a small band of cinemas in Wisconsin who plan to show games featuring the state’s Green Bay Packers team on the big screen. Some cinemas, such as Marcus Corp. and the Fox Bay Cinema Grill in Whitefish Bay, backed down in the face of cease-and-desist letters from NFL.””It wasn’t worth going up against the 800 pound Gorilla,” said Brian Henry, owner of the Fox Bay Cinema Grill.” is quoted as saying. Others, such as the Rivoli in La Crosse and the Majestic in Madison were planning to go ahead, according to this new report, claiming “that they had not received letters from the NFL asking them not to show the game,” according to this article.

The NFL claims that cinemas are violating copyright, though cinemas have responded that sports bar are allowed to show the games, so why shouldn’t they have the same right. Apparently cinemas are not charging admissions, but similarly to bars, rely on food and drinks sales. They must calculate that they will earn more from this than the movie that they cancel the screening of to make room for American Football games.

Several commentators have tackled this issue head on and the commercial motivators for the NFL’s tactics, such as Mike Moore from The Journal Times, who notes that at the heart of the matter is the fact that:

the league is protecting its TV pals’ rating points. Good ol’ Nielsen can’t distinguish between a living room full of three cheering fans and an auditorium full of 333. They both count the same.

Same goes for sports bars, the most likely Plan B for disappointed theater-goers. The difference is bars whittled themselves a legal exemption, because they show games every day.

So while the game is not a pay-per-view event and the audience in the cinema will have to sit through the same advertising that people at home have to suffer, screening games in cinemas decreases the number of house holds that count as having watched it and this will drive down advertising spend.

But what is the legal difference between a sports bar and a cinema? Don Walker of the Milwaukee Journal Sentinel looks at the question in his Business of Sports column:

Prof. Anuj Desai, an expert on copyright law at the University of Wisconsin Law School, told me that copyright protection likely belongs to the broadcast of the games. In that view, he said, the game is viewed as a copyrighted work or production.

Additionally, copyright law also includes what Desai called a “public performance right.” “If you have people in a place that holds more than a small circle of friends, that is considered a public performance,” he said. Such a public performance falls under copyright protection.

Which brings us to the sports bars. Like the theaters, sports bars don’t normally charge an admission price. Owners of sports bars simply want you to come in, buy a drink or meal, and watch the game.

So how come they don’t have to worry about violating any copyright law? According to Desai, copyright law includes provisions that govern whether a sports bar or restaurant can show games like the NFL playoffs. Desai said the language is cumbersome and complicated. But the bottom line is that sports bars can seek legal permission to show games.

In a saner world, cinemas should be in a better position to strike a deal with the NFL than sports bar, since unlike the former they can count actual admissions, but this would entail Nielsen re-thinking how advertising viewing is measured, plus force cinemas to share attendance statistics with a whole new set of people. Somehow I don’t see this happening in a hurry.

But with recession breathing down Joe Six Pack’s neck and a shiny new jumbo-size flat screen TV out of his financial reach, a digital cinema screening of a high definition NFL game at his local multiplex becomes an attractive option. Nobody said alternative content screenings would be easy, but few have appreciated the legal quagmire that digital cinema opens up in terms of copyright and public performance issues.

Patrick von Sychowski
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