Sounds simple enough right? Just wipe down the bar, turn on the TV, and watch your beloved craft patrons flow in while your taps flow out. Like most things in life, it isn’t that simple and there are legal issues that may come into play (pun intended).

Copyright Issues?

The NFL owns the copyright to the Super Bowl. Think about it – how many times have you heard or read “Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited” when watching a football game? So many times that it’s permanently engraved into your brain? Yeah, us to.

Here’s a quick refresher on copyright law. The Copyright Act grants five rights to a copyright owner:

  1. the right to reproduce the copyrighted work;
  2. the right to prepare derivative (spin-off) works based upon the work;
  3. the right to distribute copies of the work to the public;
  4. the right to perform the copyrighted work publicly; and
  5. the right to display the copyrighted work publicly.

Like playing music in your taproom (check out our blog on that here), we are concerned with number 4, the right to perform the work (the Super Bowl in this case) publicly.

You must have the legal right to broadcast the game to the public.  One way to get that right is to use a commercial television service such as a DirecTV or Xfinity business account.  The key here is that it’s a “business” account.  You can’t use your personal DirecTV login to show the game at the brewery.  The business accounts typically cost more than consumer accounts because they include the licenses needed to publicly show the programming. The same is true for a large number of streaming services out there – you need to have a specific type of account authorizing you to stream its content to the public.

What if you don’t have one of these business accounts? Thankfully, there is another way to legally show the game.  And it’s old school. Remember in the before time when you had rabbit ears on the TV to watch any one of the four broadcast channels? If you don’t, we need to check your ID. Well, copyright law allows you to broadcast TV from an antenna in your brewery (or other business) so long as you meet these requirements:

  • Your brewery is no larger than 3,750 square feet;
  • You aren’t requiring customers to pay to access the space where the game is being shown (i.e. a cover charge);
  • You don’t show it on more than 4 total TVs total (and each TV airing the game is in a different room);
  • The TV screens airing the game are 55” or smaller; and
  • You aren’t playing the audio on more than 6 total loudspeakers (and there aren’t more than 4 loudspeakers broadcasting the game in a single room)

We know that sounds pretty bizarre, but those are the rules. If you’re a larger establishment, you may be concerned about the square footage requirement. Don’t worry though, if we dive deeper there is a dream within a dream – I mean an exception within an exception, sorry. Even if your brewery is larger than 3,750 square feet, you can still avoid copyright infringement if you confine the viewing area to a space that is less than that particular square footage. For example, if you have multiple tap rooms in your brewery, only broadcast the game in a single room that doesn’t exceed the maximum square footage requirement.

Trademark Issues?

Just like you’ve trademarked the name of your favorite brew (if you haven’t, drop us a line), the NFL has trademarked the name of its favorite game. And like most corporate giants, the NFL can be pretty sensitive about the unauthorized use of its trademarks. So, establishments advertising themselves as a place to watch the “Super Bowl” should proceed with caution.

Under trademark law, a brewery could use another company’s registered trademark if: 1) the use does not suggest a relationship between the advertiser (brewery) and the trademark owner; and 2) the trademarked goods or services cannot be readily identified without using the trademark.  This is called “nominative fair use.”  The first part isn’t very difficult to achieve. Using a phrase like “come watch the Super Bowl” probably doesn’t suggest a relationship, while “get your Super Bowl beers at Brewery X” is more likely to imply an association or sponsorship. The second part of nominative fair use is harder to navigate in this case, because you can probably find a way to advertise that you are showing the Super Bowl without actually using the words “Super Bowl.”  Most Americans will know what you mean when you say, “come watch the Big Game with us!”

To be safe, just try to avoid using the NFL’s trademark.  Do something clever like “come watch expensive commercials and an American Football game this Saturday” or some other similar phrasing.  You can call it a “Football Watch Party,” or “The Sports Game Watch Party,” or “Game of Touchdowns” we don’t care. Just don’t use the term “Super Bowl.”

So get your favorite beer, watch some commercials and cheer for your team. GO SPORTS!