Senator BURDICK. Thank you very kindly for your contribution. The next witness is Mr. Pete Rozelle, Commissioner of the National Football League.

STATEMENT OF PETE ROZELLE, COMMISSIONER, NATIONAL FOOTBALL LEAGUE; ACCOMPANIED BY HAMILTON CAROTHERS, COUNSEL

Mr. ROZELLE. Mr. Chairman, members of the committee, my name is Pete Rozelle. I am commissioner of the National Football League and will be commissioner of the expanded nationwide professional football league which has recently been announced. I am therefore speaking not only for the 15 member clubs of the National Football League but for the 9 clubs of the American Football League which will shortly be joining us in the expanded league. This league will include professional football franchises in Atlanta, Baltimore, Chicago, Cleveland, Dallas, Detroit, Green Bay, Los Angeles, Minnesota, New York, Philadelphia, Pittsburgh, St. Louis, San Francisco, Washington, Boston, Buffalo, Denver, Houston, Kansas City, Miami, Oakland, and San Diego. Two additional cities will be brought into the league before 1968 and probably additional cities after 1970.

I wish today to direct myself to the copyright implications of community antenna television operations as they affect professional football.

Professional football and all other professional sports are confronted with a growing problem. There has been a steady proliferation of CATV systems throughout the country. These systems make major use of professional sports telecasts as a device for enrolling new subscribers. They appropriate our game telecasts in a fashion which directly damages our own interests. They do so without our consent and over our objection. If they are permitted to continue to do so, they will damage our own ticket sales and reduce the sales value of our own television rights. Ultimately they may destroy our present patterns of free home television of all away games of each home team Some background is necessary for an understanding of how this problem comes about and why copyright protection for professional football telecasts is both proper and necessary. In particular, the league urges that whatever bill is reported by the committee make explicit that live sports telecasts are to be afforded copyright pro

tection.

The member clubs of the National and American Football Leagues stage professional football contests at very considerable expense to themselves in player payrolls, stadium rentals, travel costs, game expenses, and a host of other items. Their return from these efforts comes from the sale of tickets to their games and through the sale of rights to televise them. While television has become an increasingly important source of income in recent years, and the National Football League is interested in bringing its games to the widest possible television audience, the major objective of every National Football League club must be to keep its stadium filled with interested fans. The Ñational Football League does not choose to follow the path of professional boxing and have its teams play in comparatively empty arenas before national television audiences.

In order to preserve its game attendance, the National Football League has found it necessary to prevent the simultaneous telecasting of home games within the home territory of league clubs. The league's right to impose this limited restriction has been upheld by court decision, and has been specifically affirmed by the Congress. Public Law 87-331, enacted in 1961, authorizes the National Football League to restrict telecasts in the home territory of a member club when the club is playing a home game. The NFL plans, on an experimental basis, to bring outside games into blacked out home territories this fall, but it will do so on a carefully controlled basis and under no circumstances will it permit the same game being played in the home territory to be carried on home television sets.

Notwithstanding specific judicial and congressional approval of this limited restriction on simultaneous telecasts of league games, the protections for home game attendance are being jeopardized by CATV systems that pick up the home game broadcast from a distant television station and carry it back into the heart of the home team's territory. They do this without the consent of the home team, the league, the television station whose signal is picked up, or the network that purchased the original television rights to the telecasting of the game. They simply pay no attention to our contract restrictions, our own interests, or the interests of the networks which have purchased our rights.

For example, a CATV system in the suburbs of Cleveland has announced its intention to carry the Cleveland Browns' home games by picking up the television signals of the games from distant stations outside the home territory. This is but one example. CATV systems are mushrooming all over the country and at the present rate, it will not be long before CATV systems are operating in the home territories of all 24 present professional football clubs. In Buffalo, for example, a local CATV is advertising that for only 16 cents a day the Buffalo Bills' home games can be seen at home without the trouble and expense of visiting the stadium. The effect is going to be direct. damage to home game attendance, and the impact will be felt most quickly by the less successful clubs in both leagues.

But the impact of these practices by CATV's is not limited simply to home game attendance problems. Unauthorized CATV appropriation of our game telecasts directly interferes with many other objectives sought to be advanced in our league television contracts. These objectives are closely identified with the interests of the fans as well as of our clubs.

First, the rights sold by the league to the purchasing network are exclusive, as they need to be if they are to have significant value. CATV destroys this exclusivity by importing distant and competitive games and therefore impairs the value of the television rights purchased by the network.

Second, the NFL television contracts require the purchasing network to carry away games of each NFL club back to that club's home territory, regardless of the economic factors involved or the purchasing network's preferences. This insures that hometown fans of each team have access to all of the team's away games. To implement this requirement, regional networks are established each week for each league game. CATV importation of other games threatens to break

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down this regional network structure. A purchasing network will be placed under considerable economic pressure to resist paying the heavy tieline charges and other costs necessary to bring every away game of each home team back to the hometown if CATV's can compete with the local stations without such costs.

Third, as required by Federal legislation, the league's contracts prohibit the telecasting of league games in direct conflict with college games during the regular college season. CATV importation of distant signals ignores these restrictions and makes it impossible for the league to honor the congressional directive. We not only cannot protect our own interests; we cannot even protect the interests of the colleges.

In short, CATV activity threatens to deprive sports leagues, such as the NFL, of all control of the manner in which their sports events are televised. This is an unfair and unwarranted situation. The member clubs of the National Football League incur great expense to produce their games. They are entitled to copyright protection if they are to protect their performance rights and their game investments from appropriation by total strangers that now pay nothing and whose activities reduce the value of their television rights. Moreover, as a result of the present situation, we lose the very privileges Congress specifically accorded us in the 1961 act.

In terms of the copyright principles involved, live sports telecasts are a form of entertainment similar to motion pictures. Indeed, video tapes of sports telecasts fall squarely within the definition of motion pictures in S. 1006, the copyright revision bill. The critical problem is presented, however, by the fact that CATV systems appropriate and sell commercially our game telecasts simultaneously with their transmission by the broadcasting stations. We urge that the Congress make explicit that this form of appropriation, like appropriation of taped sports events, constitutes infringement of a copyright. This can be done by amendment to the definition of "motion pictures" in section 101 of the copyright revision bill to include within that term live sports telecasts recorded simultaneously with their original transmission.

We believe we have enforcible rights against CATV systems under common law copyright principles. But section 301 of the copyright revision bill would appear to preempt common law copyright to the extent of works subject to the Federal copyright statute. The present bill might, therefore, move us backward. The answer lies in recognizing the property rights of producers of live sports telecasts by making the Federal statute explicit in providing copyright protections for live sports telecasts. This would be consistent with the 1961 act of Congress and with the public interest in widespread telecasting of sports

events.

There is also a need to clarify the remedies available for CATV infringement of sports program copyrights. Questions may be raised whether the original telecasts of these programs constitute a "publication" within the meaning of section 411 of S. 1006. If they are not, the award of statutory damages and attorneys' fees, as authorized by sections 504 and 505 of the bill, may not be available to the holders of sports program copyrights. Consideration should be given to amend

ment of section 411 to permit the award of statutory damages in instances where there is an infringement of a sports program copyright occurring simultaneously with the original transmission.

I much appreciate the opportunity to appear before you. There is attached to my statement a brief appendix setting forth the two amendments to S. 1006 that we request be given consideration by this committee.

(The appendix to Mr. Rozelle's statement follows:)

APPENDIX TO TESTIMONY OF PETE ROZELLE, COMMISSIONER, NATIONAL FOOTBALL LEAGUE, BEFORE THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE JUDICIARY COMMITTEE ON S. 1006

1. The definition of "motion pictures" in section 101 should be amended to read as follows:

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"Motion pictures' are works that consist of a series of images which, when shown in succession, impart an impression of motion, together with any accompanying sounds, regardless of the nature of the material objects, such as films or tapes, in which they are embodied, and specifically include television broadcasts of sporting contests simultaneous with the conduct of the contest which are recorded simultaneously with their transmission." 2. Section 411 should be amended in the following manner;

"In any action under this title, no award of statutory damages of of attorney's fees, as provided by section 504 or 505, shall be made for (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration unless, in the event of a television broadcast of a sporting contest simultaneous with the conduct of the contest, such registration is made within three months after its original transmission;

Senator BURDICK. Mr. Rozelle, I want to thank you for your contribution to the committee. I can understand your problem. It is your purpose to try to encourage live bodies at the stadium and give the benefit of the game to those within the immediate area of the city. You control this or try to control it by contracts with the various broadcasting companies. But you cannot control the pickups the CATV take from distant stations?

Mr. ROZELLE. Yes, sir.

Senator BURDICK. Is that about the size of the problem?

Mr. ROZELLE. That is correct. The other problem is that of exclusivity, the problem of fractionating audiences by having CATV bring in as many as four or five games at the same time.

Senator BURDICK. Is this problem that you have described threatening or is it in being? Is it happening right now?

Mr. ROZELLE. It is happening now.

Senator BURDICK. Have games been broadcast in the blackout area on CATV?

Mr. ROZELLE. I think this has occurred in the past, but the problem is growing. Starting the latter part of August in Cleveland, and apparently throughout this coming season in Cleveland, it will be done extensively.

Senator BURDICK. And you think it may be done more extensively as days go on?

Mr. ROZELLE. And as more CATV subscribers are enrolled in some of these areas; yes, sir.

Senator BURDICK. You have no objection to CATV as such, but you prefer to have the control through the broadcasting stations and they in turn license the CATV if they are carrying it? Would that help?

Mr. ROZELLE. We simply want our contracts honored with the network. We support the original purpose of CATV in bringing our telecasts to the so-called pocket areas, areas in which it is difficult to get adequate reception, or where they have no local station. We are certainly in accord with having the greatest possible exposure of our football telecasts. But we do have deep concern about violation of our blackout practices, as these have proven so successful in developing the popularity of professional football.

Senator BURDICK. Well, I think you have presented the committee with a real problem and you may be sure we will give it great consideration.

Thank you.

Mr. ROZELLE. Thank you very much, sir.

I would also like to introduce Mr. Harold Lovre, who has been representing the American Football League and I believe has just a few brief comments.

Senator BURDICK. I would certainly like to welcome my neighbor from South Dakota, a former Member of the House of Representatives. STATEMENT OF HAROLD 0. LOVRE, WASHINGTON COUNSEL FOR THE AMERICAN FOOTBALL LEAGUE

Mr. LOVRE. Thank you very kindly.

Senator BURDICK. Off the record. (Discussion off the record.)

Senator BURDICK. Please proceed, Mr. Lovre.

Mr. LOVRE. Mr. Chairman, I am appearing on behalf of the American Football League. I have asked for this time merely for the purpose of entering an appearance for the American Football League, because Commissioner Pete Rozelle has spoken for both leagues. We subscribe wholly to the statement and the testimony as presented by Commissioner Rozelle.

Now, Mr. Chairman, relative to the question you have directed to Commissioner Rozelle, whether or not CATV is threatening the income or gate receipts received by clubs. Last year, when we appeared before the Subcommittee No. 3 of the Judiciary in the House of Representatives on a similar bill, I had with me and introduced into the record two ads that appeared in the Buffalo Courier Express on Sunday, August 1, 1965, and another ad on Wednesday, August 18, 1965, by the Courier Cable Co., which ads you will find on pages 1835 and 1836 of the printed hearings of the subcommittee. I think that those ads, which I refer to by reference, give you a complete answer to the question that you directed to Commissioner Rozelle. The first one, "CATV Is Coming." It is a one-page ad. I am not going to read it because

Senator BURDICK. Where did this appear in a newspaper?

Mr. LOVRE. In a newspaper. It appeared in the Buffalo Courier Express on the two dates I mentioned.

The second ad, which appeared on Wednesday, August 18, 1965, starts out with "Do you live on one of these streets in Buffalo?" Then it lists a number of streets. "If you do, sign up now for cable television. Save $15 on the installation fee. Enjoy nine more channels on your TV set. Triple your viewing pleasure."