The public performance right is available to all types of "performable" works — literary, musical, dramatic, and choreographic works, pantomimes, motion pictures, and other audiovisual works — 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).
|“||To perform or display a work “publicly” means . . . (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.||”|
Of course, as the statutory language indicates, in order to constitute a public performance, an event must first satisfy the definition of “performance” under the Act. “To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process . . . .” The terms “recite,” “render” and “play” are not defined within the Act. In order for a work to be performed, it must be transmitted in a manner designed for contemporaneous perception.
|“||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 captured 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” — by showing its images in sequence — 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 — which brings it within the scope of copyright — 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."
Application to the Internet
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.
Musical works and sound recordings
The holder of a copyright in the musical work has a more robust right to control public performance in a wide variety of situations, while the sound recording copyright holder has a far more limited right to control public performance of sound recordings — only when the sound recording is transmitted to the public through digital means. The difference in the scope of the public performance right under the Copyright Act for these two copyright holders, and its impact on royalty obligations for third parties wishing to publicly perform sound recordings, may be illustrated by the following scenarios:
- An entity that wants to broadcast a sound recording for the public through non-digital transmissions, such as a terrestrial AM/FM broadcast radio station, must pay royalties to the musical work copyright holder (e.g., the songwriter) for the right to publicly perform the musical work, but the radio station does not have to pay royalties or otherwise get permission from the sound recording copyright holders (the recording artist, musicians, and record label).
- In contrast, if the music is transmitted to the public through digital means, the two music copyright holders’ public performance rights (and the transmitting entity’s royalty obligations) are different. If the public performance of the sound recording involves a digital audio transmission — as used by an Internet radio broadcaster (or “webcaster”), satellite digital radio company, or a traditional AM/FM radio station offering a simultaneous Internet stream of its over-the-air programming — then both the songwriters and recording artists have the legal entitlement to be paid for that activity. Stated differently, the webcasters and satellite radio companies, because they transmit audio using digital technologies, are required to pay royalties to both the musical work copyright holder and the sound recording copyright holder.
Performing rights organizations
Royalties for the public performance of musical works and sound recordings are collected and distributed by performing rights organizations (PRO), such as the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC) and Sound Exchange, respectively.
The Copyright Act includes exemptions for certain public performances of copyrighted music. Subsection 110(4) of Title 17 provides that the following performances do not constitute a public performance for the purposes of the Copyright Act and therefore do not require a public performance license:
|“||[any] performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if  there is no direct or indirect admission charge. . . .||”|
To be held liable for direct infringement of the public performance right, a defendant must have engaged in conduct that is volitional or causally related to that purported infringement. In other words, to impose direct liability, there must be a “nexus sufficiently close and causal to the illegal [infringement] that one could conclude that the [defendant] himself trespassed on the exclusive domain of the copyright owner.”
A defendant may also be secondarily liable for another’s public performance of a copyrighted musical work. While “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another,” it “does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.” Through contributory infringement, one infringes “by intentionally inducing or encouraging direct infringement.”
Vicarious infringement exists where one “profit[s] from direct infringement while declining to exercise a right to stop or limit it.” In order to hold a defendant secondarily liable someone else must have directly infringed the public performance right.
- See 17 U.S.C. §110.
- See id. §106(4) (“[T]he owner of copyright under this title has the exclusive rights to do and to authorize any of the following: . . . (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly . . . .”)
- Id. §101.
- Information Infrastructure Task Force, The Report of the Working Group on Intellectual Property Rights (Bruce A. Lehman), at 71 (Sept. 1995).
- See, e.g., Columbia Pictures Indus. v. Redd Horne, Inc., 749 F.2d 154 (3d Cir. 1984) (video store operator liable for public performance violation where he rented tapes of motion pictures to customers and provided semi-private screening rooms where the tapes could be viewed); Columbia Pictures Indus. v. Aveco, Inc., 800 F.2d 59 (3d Cir. 1986) (same result where customers also rented rooms for viewing); On Command Video Corp. v. Columbia Pictures Indus., 777 F. Supp. 787 (N.D. Cal. 1991) (infringement found where hotel guests in rooms selected tapes to be played on remotely controlled console in hotel basement with signal then sent to rooms).
- For those who wish to exercise the public performance rights in a musical work, a license is required. These licenses can be obtained directly from the copyright holder, but for most musical works, a license can be obtained from the major performing rights societies — ASCAP, BMI or SESAC.
- A “broadcast” transmission is defined as a transmission made by a terrestrial broadcast station licensed by the Federal Communications Commission. 17 U.S.C. §114(j)(3).
- This will change if the Performance Rights Act is enacted by Congress.
- 17 U.S.C. §110(4).
- Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 130-31 (2d Cir. 2008) (considering infringement under 17 U.S.C. §106(1)).
- Id. at 130 (citation omitted).
- Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 434-35 (1984).
- Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005).
- See id. at 940 (“[T]he inducement theory of course requires evidence of actual infringement by recipients of the device.”); Faulkner v. National Geographic Enters., Inc., 409 F.3d 26, 40 (2d Cir. 2005) (“[T]here can be no contributory infringement absent actual infringement.”); Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 706 (2d Cir. 1998) (rejecting plaintiff’s contributory infringement claim, in part, because the plaintiff “has failed to identify any primary infringer”).