Tuesday, June 21, 2011

Public Display

We've been talking about the bundle of rights the owner of a copyright has in the copyrighted work.  You'll recall that Section 106 of the United States Copyright Act gives the copyright owner "the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(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;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission."  We've touched on all of these except public display, which we'll talk about today. 

But first, an apology: I have been somewhat negligent in posting on this blog due to some commitments I had in early June.  Suffice it to say that fish were caught in Nag's Head, cattle were taken care of in Vale, North Carolina, Chico the bull (pictured above) was delivered to a new home with lots of new lady cows to meet, and my niece is safe in her new home in Pensacola.  Now back to copyright law.   

As noted above, the right to public display of copyrighted work applies to all copyrighted works except for sound recordings and architectural works.  Obviously, sound recordings aren't displayed.  Architectural works are displayed, but extending the right to public display to such works would limit the usefulness of the final product.  The typical question in copyright matters is what, exactly, is meant by "public display"?   The copyright statute has defined this as follows:

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.
Easy stuff, right?  In case you haven't noticed, a recurring theme in copyright law is the exception to the rules.  The right to public display is, like the other rights, littered with exceptions:

1: Owners of lawfully made copies of a copyrighted work have the right to display their copy publicly to viewers that are present at the place where the copy is located.  Wider display beyond the location of the copy is reserved for the copyright holder, in order to protect his market.  Thus, television broadcast and internet display are not part of the exception.

2:  Public display on a home-style receiver, such as a television (like one used in homes) in a public place is not infringement of the right to public display, unless their is a charge to view the television.  This exception is often used by bars and restaurants which use televisions to entertain their customers.

3:  Display of a copyrighted work by instructors in face-to-face nonprofit educational settings do not constitute infringement.  If the school is a for-profit school, the exception does not apply. 

4:  Public display through instructional broadcasts by a governmental body or nonprofit educational institution do not infringe the right to public display if the broadcast is (1) to a classroom or palce of instruction, (2) to persons who are unable to attend class, or (3) to government workers as part of their employment. 

5:  Display during religious services does not infringe the right to public display.

6:  Secondary transmission of broadcast transmissions may not infringe the public display right in certain circumstances, such as when hotels receive broadcast signals and retransmit them to individual rooms.

In addition to the noted exceptions, the statute also requires that copyright holders submit to complulsory licenses of the right to public display by noncommercial broadcasts, by sattelite retransmission, and by cable systems.

Tomorrow,we will talk a little about what are known as moral rights. Please let us know if you have any questions or comments. Email is at jdellinger@mainspringlaw.com.

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