Re: DVD: public performance with an audience of only one person?

I think we're talking about the display right, rather than the performance right, but whatever -- you can't infringe either the display right or the performance right by displaying a work to yourself or performing it without any audience at all. There's no claim here at all without the license restriction; and the license restriction, typically worded as "for private home use only," is more talismanic than technical. You have to think in terms of what the copyright holder means to forbid (and is entitled to forbid), instead of what he wants to allow; and you have to think about whether the complaint would pass the SF test -- can a lawyer argue the claim in open court with a straight face.

You might pass the SF test if the defendant had a staff of 50 people wearing headphones and watching videos in cubicles, logging the time and duration of trademark use for the purpose of filing trademark infringement claims. But the restriction is generally understood (trade usage) to permit private viewing by the kids in the back seat of your car, on a laptop at Starbucks, and even in the office during a lunch break. It's more concerned with the meaning of "private" than the meaning of "home."

The fair use defense is better than you think. The work is entitled to the highest protection for creative works; but the amount used is the amount licensed -- the right to watch the whole movie. Insofar as the the nature of the use departs from the explicit license, the use is transformative, and the portion used is the few seconds of product placement, and it doesn't interfere with the copyright holder's exploitation of his copyright. The only departure from the licensed use is the location of the use. If the infringement claim turns on whether or not the defendant lives at home and works in an office, or lives and works in a home-office, the plaintiff is on pretty thin ice.

When I try to imagine who would have any incentive to bring the claim -- why your inquiry might not be wholly hypothetical -- the only thing I can come up with is a motivation to conceal the product placement deals behind the appearance of the trademarked product because the advertising is more effective if people don't know that Clint Eastwood is being paid to smoke Marlboros instead of his own brand (Gauloise?). That would suggest an affirmative defense of copyright misuse.

John Noble

At 4:00 PM -0400 9/8/06, Dominik P. Rubli wrote:
>Regarding US copyright law:
>
>Is there a practice for issuing umbrella licenses for commercial purposes
>regarding the performance of DVDs where there is no audience in a
>traditional sense, e.g. when a marketing information company screens DVDs
>for appearances in a movie of products with a certain trade mark? Here, only
>one person at a time watches the movie in his office, thus the audience is
>just one person.
>
>Since ordinary DVDs are licensed for viewings in private homes only and any
>use outside the private home is deemed "public performance" under US
>copyright law, it seems that in my example the marketing information company
>would need a license. Fair use does in my opinion not apply because the
>first three factors seem to weigh against it.
>
>The reason behind my inquiry is that Swiss copyright law does not know the
>notion of "public". Instead, every performance of a movie is an
>infringement. However, statutory exceptions apply. One is for private use
>which is not limited to a space like a private home. So there is debate
>whether the use outlined above still is private use because only one person
>watches the movie at the same time or not because it is clearly commercial
>in nature.
>
>Thanks for any input!
>
>Dominik P. Rubli
>
>Dominik P. Rubli, lic. iur. HSG
>Rechtsanwalt/Attorney-At-Law
>Landvogt Waser-Str. 34
>Postfach 465/P.O. Box 465
>CH-8405 Winterthur
>Schweiz/Switzerland
>Tel. +41 (0)44 500 93 50
>Fax +41 (0)44 500 93 51
>Tel. privat +41 (0)52 233 08 67
>mailto:drubli[_at_]rublilaw.com
>www.rublilaw.com
>
>
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Received on Tue Sep 12 2006 - 01:40:30 GMT