Public Performance of Copyrighted Work

"Life is like a public performance on the violin, in which you must learn the instrument as you go along"
— E.M. Forster

While life may share many characteristics with public performance, it is not part of the bundle of rights associated with copyright. The copyright owner has the exclusive right to public performance of the copyrighted work. Besides not applying to life in general, this right does not apply to several categories of copyrighted subject matter. As you would expect, it does not apply to certain works that are not "performed.". This includes pictorial, graphic, and sculptural works and architectural works. Interestingly, the exclusive right to public performance does not generally apply to sound recordings. This means that radio stations may broadcast copyrighted sound recordings with no liability to the owner of the sound recordings copyright. I'll discuss the rather unusual world of public performance of sound recordings tomorrow. For literary works, musical works, dramatic works, pantomimes and choreographic works, and motion pictures, the exclusive right to public performance applies.

The Copyright Act defines public performance 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.

It is important to note that there are often multiple incidents of "performances" of a copyrighted work. For example, a singer might sing a copyrighted song in public- a first performance. The performance might be recorded and broadcast by a television network- a second performance. The broadcast might be rerun later- a third performance. Each new rendition is a separate public performance.

But what is "public"? As the definition above states, it means a place open to the public or any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. If the public is free to go to a place, it is considered a public place, even if the place is small and can host only a limited number of people. Hotel rooms are generally not considered public places, so viewing a rented video in a hotel room is not a public performance. Note, though, that even places generally not considered public, such as a home, may still host a public performance if there are a substantial number of folks present who are not friends and family. Finally, the transmission of a performance to the public is a public performance. Whether anyone sees the performance is not important.

A few exceptions to the exclusive right to public performance are worth noting. Non-profit performance of nondramatic literary or musical works are not covered. Stores may publicly play musical works on the premises in order to promote sales of the works. And nondramatic musical works may be performed in the course of fairs sponsored by government and nonprofit agricultural organizations.

I'll talk about the public performance of sound recordings tomorrow. Please let us know if you have any questions or comments. Email is at jdellinger@mainspringlaw.com.