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This lawsuit, brought by the National Football League (NFL) and the St. Louis Football Cardinals (Cardinals), alleges that defendants, the owners of several St. Louis restaurants, violated federal copyright and communications law by showing Cardinals’ home games which had been “blacked out” in the St. Louis area. According to plaintiffs, defendants picked up the signals for such games by means of satellite dish antennae. The District Court, which had already issued a temporary restraining order and a preliminary injunction, entered a permanent injunction against defendants after a trial on the merits. The decision was based on the Copyright Act of 1976, 17 U.S.C. § 101 et seq., and the Federal Communications Act, § 705 (formerly § 605). In the main, we affirm.

The Cardinals, a professional football team, is one of 28 teams composing the NFL, an unincorporated non-profit association through which the member clubs schedule games and manage their affairs as a group, including contracts with the three major television networks. One provision of those television contracts is that games which are not sold out within 72 hours of game time are to be “blacked out,” that is, not broadcast within a 75-mile radius of the home team’s playing field. Officials of the league and club testified at trial that such a rule boosts team revenue directly by increasing ticket sales and indirectly because a full stadium contributes to a more exciting television program and therefore makes the right to broadcast games more valuable.

Witnesses also described the process by which a live football game is telecast by the networks, in this case CBS. As television cameras capture the visual portion of the game, announcers describe and discuss the action from a sound booth of some kind. Those simultaneous audio and video signals are combined at an earth station outside the stadium. This signal-called an uplink-is transmitted up to a satellite, which then sends the signal back-called a downlink-to a network control point on Long Island. Because that signal contains no images other than those from the stadium, this stage is referred to as a “clean feed.” The signal is then sent by cable to CBS studios in New York; commercials and other interruptions, such as station breaks, are inserted, and it is now described as a “dirty feed.” There is another uplink to the satellite, and then a downlink to local affiliates, who insert local material and finally put the live broadcast on the air. The process apparently takes far longer to describe than to occur; at argument, counsel for the NFL called the procedure“simultaneous, instantaneous,” and said that the delay between the action on the field and the broadcast by local affiliates was considerably less than two seconds.

The defendants are owners, corporate or individual, of St. Louis bar-restaurants within 75 miles of Busch Stadium, the Cardinals’ home field. All defendants have satellite dish antennae that enable them to receive transmissions in the so-called C-band frequency, approximately 3 200-4 200 megahertz, in which the satellite sends and receives transmissions. There is no question that prior to November 19, 1984, all defendants but two picked up the clean feed (from the satellite to CBS) and thereby showed blacked-out home games of the Cardinals. On that date, plaintiffs requested and the District Court entered a temporary restraining order, preventing defendants from intercepting and showing the home game scheduled for the following Sunday; after a hearing, the Court issued a preliminary injunction in basically the same terms, dealing with the last home game of the season. Trial on the merits was held on May 7, 1985. The District Court found that the telecasts were copyrightable under Section 102 of the Copyright Act, that the plaintiffs were owners of those copyrights, and that display of the clean feed transmissions of those telecasts violated plaintiffs’ exclusive right of display and performance under Section 106 of the Act, as well as Section 705 of the Communications Act. A permanent injunction issued on September 13, 1985, prohibiting the defendants from intercepting and showing plaintiffs’ programming, whether in the form of the clean or dirty feed transmissions.

The owners of the defendant restaurants challenge the District Court’s Copyright Act decision on a variety of grounds: that the evidence presented by plaintiffs to show irreparable injury was too speculative to support the issuance of a permanent injunction; that defendants’ display of blacked-out home games falls under statutory limitations on exclusive rights of a copyright owner, 17 U.S.C. § 110(5); that defendants did not infringe on plaintiffs’copyright because they intercepted the clean feed rather than the dirty feed, which was the transmission actually “fixed” under the Copyright Act and registered with the Copyright Office; and that under 17 U.S.C. § 411, no permanent injunction can issue concerning works which are not already in existence. Although some of these arguments have more substance than others, we consider all to be ultimately without merit.

The Copyright Act protects “original works of authorship fixed in any tangible medium,” including “motion pictures and other audiovisual works”. As for live broadcasts, such as the football games at issue here, the Act states that “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,” “to ‘transmit’ ” is defined as “to communicate... by any device or process whereby images or sounds are received beyond the place from which they are sent.” The defendants claim that no infringement took place because they intercepted the clean feed, and it was the dirty feed which was fixed under the Act and for which the plaintiffs sought copyright protection. In making the argument that the clean and dirty feeds represent separate works, defendants depend on the quoted definitions, as well as a third provision of Section 101 which states that each draft version of a work “prepared over a period of time”, constitutes a separate work.

The District Court rejected this theory on two grounds. Not only could the argument rule out any protection for live broadcasting by satellite transmission but, the Court said, it also ignored the fact that the game, and not the inserted commercials and station breaks, constituted the work of authorship.

We agree. Plaintiffs testified copyright protection was obtained for “the game, the game action... the noncommercial elements of the game.” More important, the legislative history demonstrates a clear intent on the part of Congress to “resolve, through the definition of ‘fixation’..., the status of live broadcasts,” using-coincidentally but not insignificantly-the example of a live football game. We have already discussed the near-instantaneous nature of the picture’s journey from stadium to viewer, ante at 728; Congress surely was aware that the images and sounds from a live broadcast do not go directly from camera or microphone to a home television or radio. To hold that this transmission process nevertheless represents the performance of separate works would gut the plain purpose of the “fixation” definition, as well as distort the concept of a “work prepared over a period of time.”

1. 对于由声音、画面或者两者同时构成的作品，版权法所要求的固定性有何特殊性？