LEGAL IMPLICATIONS OF COPING SPORTS TELECASTS FOR SHOWING (Sanitized)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP72-00310R000100300001-3
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 7
• Document Creation Date: December 12, 2016
• Document Release Date: December 17, 2001
• Sequence Number: 1
• Publication Date: August 20, 1970
• Content Type: MF

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MEMORANDUM FOR: Chief, Support Branch, OEL
SUBJECT: Legal Implications of Copying Sports
Telecasts for Showing to Employees
at Special Posts Abroad
1. The attached is a memorandum discussing the copyright
aspects of copying sports telecasts. it is our conclusion that the
legal risks are rather minimal. Certainly the penalties are
de minimis. Therefore, the judgment of whether to put these on
tapes becomes a policy judgment. If the decision were made to
copy these tapes, strict control should be maintained over the
actual tapes so there would be continuing accountability and,
presumably, eventual destruction.
2. You will also note in the attached memorandum there
are other ways to approach the problem. I would think a direct
approach by our F- I is possibly not the beat. However.
I see no reason why I could not be in touch with his
contact, in the Armed ]Forces Information Service.
I will leave these judgment and negotiations to your people if you
feel this is the way you would like to go.
Deputy General Counsel
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18 August 1970
MEMORANDUM FOR:
O
Legal Implications of Copying Sports
Telecasts for Showing to Employees
at Special Posts Abroad
1. The Agency has a hardship base abroad which is compar-
atively remote and inaccessible to any centers of culture or enter-
tainment. The responsible division would like to record national
telecasts of sports events on video tape to make them available for
showing to personnel at the base in an effort to supplement their
recreational activities. The legal implications both of recording
the programs and of showing them later are of concern.
2. P.L. 86-726 approved 8 September 1960 amends Title 28,
Section 1498 of the U. S. Code as follows:
"(b) Hereafter, when the copyright in any work
protected under copyright laws of the United States shall
be infringed by the United States... the exclusive remedy
of the owner of such copyright shall be by action against
the United States in the Court of Claims for the recovery
of his reasonable and entire compensation as damages for
such infringement, including the minimum statutory damages
as set forth in section 101(b) of Title 17, United States
Code....
"(c) The provisions of this section shall not apply to
any claim arising in a foreign country. "
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Thus, it would appear that the actual showing of video tape at an
Agency base in a foreign country would not be actionable in the
Court of Claims. The legislative history of this provision reveals
that both the Departments of State and Commerce posed objections
to the extraterritorial application of the amendment. While it is
clear from their submission to the Congress that these Departments
were concerned over U. S. Government infringement abroad of
foreign patents, the clear wording of paragraph (c) is not so limited.
Therefore, if a U. S. copyrighted video tape were shown by the U. S.
Government abroad in violation of that copyright, no action would lie
by reason of the 1960 act in the Court of Claims.
3. The remaining issue then is whether the making of a video
tape of a sports program which has been copyrighted is in itself a
violation of federal or local law. Title 17 U.S.C. section 5 classifies
works for copyright into 13 categories. Class "m" is "motion pictures
other than photoplays" which has been held to include such pictorial
representations as newsreels, travelogues, exclusive sports events
and since 19 April 1961, video tapes of these representations.
Title 17 U.S.C. section 1 states simply:
"Any person entitled thereto, upon complying with
the provisicz of this title, shall have the exclusive right:
(a) To print, reprint, publish, copy and vend
the copyrighted work;
(c) ... to make ... any transcription or record
thereof by or from which ... it may ... be exhibited,
delivered, presented, produced, or reproduced; ... "
Thus, technically no recording or other taped duplication of a copy-
righted work may be made without permission of the copyright owner
even if such recording is not intended to be replayed publicly for
profit. Nevertheless, practically speaking an individual may record
copyrighted material for his own use without fear of suit for copy-
right infringement. Moreover, recent case law has made it possible
for community antenna television companies (CATV) to process
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signals from a number of sources and channel them by lines to
individual homes without copyright infringement. The courts have
held that the CATV station is an extension of the individual's own
TV set and its presentations are therefore not public performances.
However, these cases involve instantaneous rebroadcasting from the
distant source. (CATV stations apparently do not record programs
for delayed broadcasting.) Such recording would require permission
of the copyright holder.
4. Assuming a technical violation in taping a copyrighted
sports event from television, what action could be taken by the
owner of the copyright? 17 U.S.C. 101 states:
"If any person shall infringe the copyright in any
work protected under the copyright laws of the United
States such person shall be liable:
"(a) Injunction. --To an injunction restraining such
infringement;
"(b) Damages and profits; amount; other remedies. --
To pay to the copyright proprietor such damages as the copy-
right proprietor may have suffered due to the infringement,
as well as all the profits which the infringer shall have made
from such infringement, ... or in lieu of actual damages
and profits, such damages as to the court shall appear to
be just, and in assessing such damages the court may, in
its discretion, allow the amounts as hereinafter stated, .. .
(description of various infringements where the infringer is
not aware of the infringement) ... and such damages shall
in no other case exceed the sum of $5, 000 nor be less than
the sum of $250, and shall not be regarded as a penalty....
"Second. In the case of any work enumerated in
section 5 of this title, .. . , $1 for every infringing copy
made or sold by or his agents or employees;
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"(c) Impounding during action ....
"(d) Destruction of infringing copies ......
The copyright holder would be able to receive injunctive relief only
if the court had reason to believe the copyright infringement would
continue. Shapiro, Bernstein and Co. v. Bleeker, 243 F. Supp. 999
(1965). He might also require impounding and finally destroying any
copy of his work. Finally, and most important, he would seek
damages.
5. Case law on the subject of damages leads me to the
conclusion that a court would either award the minimum statutory
amount for damages "in lieu" of "actual damages and profits" or
allow the Government to prove that damages were "de minimis".
If the court allowed proof of loss to the copyright holder and profit
to the Agency, the holding in the Shapiro case would favor judgment
for the Agency. The Shapiro case held that where exact proof of
profit can be made and where there are no other damages shown for
violation of the Copyright Act, there is no need to resort to the
provision permitting an award in lieu of actual damages. In that
case the defendants' profit for selling a single copy of a work that
contained the plaintiff's copyrighted material was 22 cents. The
court awarded judgment to the defendant with costs and the sum of
$1500 attorney fees. In reaching its decision, the court cites a
U. S. Supreme Court case, Sheldon v. Metro-Goldwyn Corp. (1940),
309 U. S. 390, which held that if either profits or damages are
ascertainable, the minimum provided for in the "in lieu" provision
need not be resorted to. A 1935 case states that the "in lieu"
provision was meant to be the equitable substitute for cases which
presented impossibility of proof as to damages and profits. Douglas
v. Cunningham (1935), 294 U. S. 207. Thus, in our case the Govern-
ment as defendant would not have presented the video tape to an
audience for profit. Moreover, since the audience is located in a
remote area abroad, far from any capability of seeing the program
directly, the copyright holder would have lost no potential revenue
as a result of the Agency's copying his work. The "de minimis"
concept, therefore, should apply. If the court were to read 28 U. S. C.
1498(b) to mean that the owner of the copyright may recover as
damages at least "the minimum statutory damages", then recovery
would be $250 for making the single copy and possibly attorney fees.
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6. Finally, this discussion would be incomplete without
mentioning cases such as Time Inc. v. Bernard Geis Associates,
293 F. Supp. 130 (1968). Here the defendants used a number of
pictures of the Kennedy assassination, the copyright to which was
held by Life magazine. One of the defendants, Josiah Thompson,
had written a book on the assassination. Life magazine had
purchased from Abraham Zapruder the home movie pictures taken
with his camera of the assassination for $150, 000. The same film
was used by the Warren Commission in its investigation. Thompson
then used some of the film for what the court termed his "serious,
thoughtful and impressive analysis". The court applied the doctrine
of "fair use", which usually when applied in infringement cases, is
meant to allow one to use a portion of a copyrighted work where that
used is not substantial and does not destroy the integrity of the work.
In this case, however, the court looked to the "public interest in
having the fullest information available on the murder of President
Kennedy". Applied to the present fact situation, it is just possible
that a court would look upon the single copy duplication of a sports
event for viewing at an isolated hardship post abroad by a group of
Government employees who otherwise would have no opportunity to
see these events as "fair use".
7. If the risk of detection and resultant legal action for
copyright infringement cannot be taken, the other alternative is to
work directly with our graphics people to negotiate with the copy-
right owners for the rights to copy these sports events. I discussed
this general possibility with who said he has
a regular relationship with the TV networks. He said further,
however, that these so-called "exclusive" sports events are usually
controlled by some sports league, i. e., the National Football League;
he did not appear reluctant to tackle the task if requested.
8. also mentioned the Armed Forces Infor-
mation Service, which negotiates for all kinds of material to be
shipped to servicemen. One such example is the six o'clock news
from all three networks which is video taped at the Pentagon and
flown to Vietnam. The contact there is
with whom 0 has a very close working
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relationship. I asked about cost also. Q said that if the
owner or Network supplied the furnished taped product it might
run between $300 - $500 per program for this limited use. If the
Agency taped the program, it would be less of course.
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