Re: Canned music

On Thu, 31 Oct 1996, MS_HERBERT wrote:
>
> Glen McKay <gmckay[_at_]beta.nmjc.cc.nm.us> wrote:
> >
> > I've been asked to research the following scenario. The athletic
> > department of a non-profit educational institution "plays" music over
> > its loudspeakers to various activity rooms-- designated for physical
> > education activities including aerobics, jazzercise, weightlifting, etc.
 . . . .
> > Feedback, anyone?

 . . . .
> I, too, would be interested in this. A friend who is a drama coach at
> a private high school has canned music playing in the auditorium for
> the audience before the play starts.
>
> Barbara Herbert <Herbert[_at_]georgian.edu>
> Instructional Media Librarian
> Georgian Court College
> Lakewood, NJ 08701-2697

You have stumbled into one of the more interesting areas of copyright law. I say this because it is an area where there is statutory language on point and the cases try to flesh out just how far you can go without violating one of the exclusive rights granted under the Copyright Act and/or how little you can do to come within one of the recognized exceptions.

Specifically, sec. 106 (4) grants the right "to perform the copyrighted work [here the music] publicly." The definition of performance is very broad and includes playing music as you have described; the main limitation on the right comes from the "publicly" qualifier. 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 acquaintance 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. (Sec. 101).

For both the exercise instructors and the drama coach, the cases seem to suggest that you are rendering a public performance. See, e.g., Columbia Pictures Industries v. Aveco, Inc., 800 F.2d 59 (3d Cir 1986) (renting rooms to the public in which they could view videotapes rented in conjunction with rooms held public performance b/c rooms rented to members of the general public). I suspect the drama performances are open to the public and the exercise classes to anyone that pays the fees and can get in. Presuming it is a public performance consider the following.

For the exercise instructors:

A couple of other sections are also relevant. First, Sec. 110 (1) provides the following is not infringement: "Performance . . . of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made"

Also, Sec 110(5) provides that "communication of a transmission embodying a performance . . . by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes [is not an infringement] unless- (a) a direct charge is made to see or hear the transmission; or (b) the transmission thus received is further transmitted to the public."

Finally, if you are at a state school, some recent decisions suggest that the state may be immune from suit under the 11th amend of the Constitution for violations of the Copyright act.

Enough with the legalese; what does it mean?

First, you are wise to be concerned. As noted above you would appear to be publicly performing likely-copyrighted material which would be an infringement. Whether it is a CD/tape or the radio is immaterial for this determination (see below)

Second, you would appear to be able to avail yourself of the "face-to-face teaching activity" exception in 110(1). Again, for this exception CD/Radio does not make a difference.

Third, if the music is played over "a single receiving apparatus of a kind commonly used in private homes" then you fall squarely within the 110(5) exception but only for playing the radio--this is what the public reception of a transmission puts in. The cases interpreting the language quoted above take it quite literally: if it's the kind of machine you'd expect to find in homes, you fall under the exception.

Finally, even if you are at a state school, best not press your luck. This ground is still unsettled.

For the High School drama coach:

Sec 110(1) applies only to face to face _teaching_ activities and if this is a performance of a play not instruction is inapplicable. However, Sec. 110(4) of the Copyright Act provides the following is not infringement:

"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 -

(A) there is no direct or indirect admission charge; or

(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions;

(i) the notice shall be in writing and signed by the copyright owner or such owner's duly authorized agent; and

(ii) the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and

(iii) the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation"

A few points re: this section. First, the "nondramatic" qualifier is one charged with legal complexity. Briefly, a performance of a musical composition is dramatic if it aids in telling a story. Dramatic rights are licensed only by the copyright holders as opposed to performing rights organizations like BMI and ASCAP. Music from operas, musicals, and TV shows which advance the plot are most likely dramatic musical works, for example. Presuming the drama coach is restricting him/herself to nondramatic musical works, the law may still not save them. The policy behind this exception is to allow school recitals, benefit shows, etc. not to allow playing of copyrighted works at school performances other than by the students. Also, depending on how its down it may be a transmission ( "To 'transmit' a performance . . . is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.) which would make the exception inapplicable.

Sec. 110(2) is an additional exception which provides that the performance of a nondramatic musical work by transmission is not infringement but only when it is a regular part of systematic instructional activities of a nonprofit educational institution and is transmitted to a classroom or similar place of instruction. Your drama coach would have to examine whether or not their particular setup qualifies for this.

There is always fair use to fall back on, but whether you could make out such a case is debatable. Anyone have any experience with making out such a case?

I hope this information is useful.

NB: None of the above is not offered as legal and advice and should not be considered as either the explicit or implicit provision of legal advice or the rendering of legal judgement or advice. Consult a legal professional. Your institutions likely have counsel who have dealt with your particular problem before and are able to adequately advise you.

Darren Donnelly --3L

Santa Clara University School of Law
Santa Clara Computer & High Technology Law Journal <ddonnelly[_at_]scuacc.scu.edu> Received on Sun Nov 03 1996 - 11:08:22 GMT