Public performance

Public performance

The public performance right is available to all types of "performable" works &mdash; literary, musical, dramatic, and choreographic works, pantomimes, motion pictures, and other audiovisual works &mdash; with the exception of sound recordings. While some have urged that many, if not all, online transactions be characterized as "performances," it is important to understand:

• the definition of "perform" in the copyright law,

• that only "public" performances are covered by the copyright law, and

• the limitations set out in the statute that render the performance right inapplicable in a variety of circumstances (mostly of a nonprofit nature).

A distinction must be made between transmissions of copies of works and transmissions of performances or displays of works. When a copy of a work is transmitted over wires, fiber optics, satellite signals or other modes in digital form so that it may be received in a user's computer, without the capability of simultaneous "rendering" or "showing," it has rather clearly not been performed. Thus, for example, a file comprising the digitized version of a motion picture might be transferred from a copyright owner to an end user via the Internet without the public performance right being implicated. When, however, the motion picture is "rendered" &mdash; by showing its images in sequence &mdash; so that users with the requisite hardware and software might watch it with or without copying the performance, then, under the current law, a "performance" has occurred.

The "public" nature of a performance &mdash; which brings it within the scope of copyright &mdash; is sufficiently broadly defined to apply to multiple individual viewers who may watch a work being performed in a variety of locations at several different times. Courts have repeatedly imposed public performance infringement liability upon entities that, for example, develop novel modes of delivering motion picture performances to customers and advance novel legal arguments as to why their performances are not "public."

Therefore, in the context of the Internet, the fact that performances and displays may occur in diverse locations and at different times will not exempt them from the public performance and public display rights.