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the right of public display and performance

Notes:
    The copyright owner has the exclusive right of performance where applicable (e.g. reading his poem to an audience). Other works, such as paintings, may only be displayed by the copyright owner. The copyright owner's right to perform varies in relation to the economic value of performance (e.g. low protection of poetry recital).

    Copyright protection of the right of performance, under the 1909 Act, turned on whether the work is performed for profit. This distinction is problematic where works are performed for indirect commercial gain (e.g. music performed for dining patrons). The scope of performance right under the 1976 Act now turns on whether the work is publicly performed (or subject to exception of Act).

    Collective right organizations, such as BMI and ASCAP, play an important role in licensing public performances of music protected by copyright. Performers grant these agencies a non-exclusive performance right which the collective rights organizations enforce against unlicensed infringement.

    Reransmission by cable television and the surplus consumer market. In Fortnightly and Teleprompter, the Supreme Court overhauls the meaning of performance, holding that retransmissing television programs to cable subscribers does not infringe the copyright owner's right of performance even though the service is commercial. According to Court, copyright owners are compensated when their programs reach a larger audience and should not get a "double dip" of the consumer surplus in the form of payments from cable providers.

    Circuit courts have offered conflicting definitions of public performance. The 3d Circuit, as in COLUMBIA PICTURES v. AVECO, focuses its inquiry on the place of performance: whether it is open to the general public or a place of private accomodation. In contrast, the 9th Circuit puts emphasis on the nature of the audience: whether the audience is restricted to family and friends.
    DZ: This kind of confusion can cost a lot of money.

    The use of copyrighted materials in non-profit, educational, and other settings is an industry-specific exception to the general rights of a copyright owner. For example, a public school teacher may lawfully recite a copyrighted poem to his class; a church choir may lawfully perform copyrighted songs for the congregation.
    DZ: These exceptions represent specific legislative statements on the balance of public and private rights.



Issues:
    What is a performance? Does it assume a willing audience? Is it necessarily live and spontaneous? Note that "captured performances" are a distinct species of works for copyright protection.

    What separates private and public performances? Consider the retransmission of a live radio performance.
    DZ: The distinction has varied over time.

    Is there an importance difference between incorporating broadcast programs in a cable package in order to overcome signal interference and importing distant signals that may compete with local broadcasters? In Teleprompter, the Court held competing interests could be balanced in setting the compulsory licensing fee or by Congressional amendment.

    Consider collective rights organizations from the perspective of antitrust law. ASCAP can be zealous in its enforcement (e.g. suing the girl scouts).

    What are the purchaser's right to display under s109?

    Some performance rights cases refer to broadcast equipment typically used in the home. It does not require a license to show what's broadcast on a home receiver. See s110(5). Is this a stable distinction given advancements in home electronics? Should a court consider the composition and nature of the audience?



Illustrative Cases:
    Buck v. Jewell-LaSalle Realty Co. (U.S., 1931) (Full Text - FindLaw)
    A hotel infringes on a composer's exclusive performance rights by playing radio broadcasts in public rooms for the benefit of its guests. Under this opinion, there might be multiple simultaneous performances.

    Fortnightly Corp. v. United Artists Television, Inc. (U.S., 1968) (Full Text - FindLaw)
    Cable television retransmission of received signals does not constitute a separate infringement performance of the initial performance.

    Teleprompter Corp. v. Columbia Broadcasting System (U.S., 1974) (Full Text - FindLaw)
    Cable provider retransmission of distant programs does not constitute an infringing performance of the copyrighted program. Follows FORTNIGHTLY. According to Supreme Court, program producers need no protection against retransmission because it expands the viewing audience and increasing potential advertising revenue.

    Twentieth Centruy Music Corp. v. Aiken (U.S., 1975) (Full Text - FindLaw)
    The owner of a fast food chicken store does not infringe on protected performance rights by playing a radio connected to four speakers in his establishment because the composer had granted licenses to radio stations and because policing this kind of retransmission would be impossible. Contrary decision in LaSalle limited to facts and the multiple performance doctrine is laid to rest.

    Columbia Pictures Industries, Inc. v. Aveco, Inc. (3d Cir., 1986)
    At issue is whether defendant publicly performs video by making them available for customer's private viewing. The opinion focuses on the availability of the store's accomodations for viewing tapes to the general public, not on the limited audience for any single viewing.

    Ocasek v, Hegglund (WY Dist. Ct., 1987)
    Case illustrating enforcement of right to public performance by American Society of Composers, Authors and Publishers (ASCAP).

    Edison Bros. Stores v. Broadcast Music, Inc. (8th Cir., 1992)
    Nationwide chain of retail stores should not be considered as whole to determine whether exception for home style equipment applicable. "The critical question," according to the Eighth Circuit, is "the type of equipment used by the putative infringer," not the physical dimension of the store.