Take a deep breath and hold on to the reins; we are off to a Day at the Races. Recall that a copyright owner has several different rights, one of which is the right to perform the copyrighted work publicly. Venues for performing and displaying copyright-protected works have greatly expanded. In addition to cable and satellite television, we now have satellite radio and online media providers like YouTube, Hulu, and Netflix. These new media outlets have made public display and performance rights one of the more volatile parts of copyright law. But before we get to the meat of this discussion, it’s important to know that U.S. copyright law does not protect all performances, only public performances. According to the Copyright Act:
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.[1]
In plain English, a public performance occurs under either of three circumstances: (1) when the place where the work is performed is open to the public; (2) if the performance occurs at a place where a large number of people (exclusive of one’s family and friends) may gather; or (3) if there is a transmission that allows the public to see or hear the work.
The public performance right is designed to prevent large numbers of people from seeing the same copy of a copyright-protected work, whether at one time or over a period of time. Determining when public performances take place is not always easy. Consider, for example, what different state attorneys general wrote during the 1980s as to whether state prisons could show purchased or rented videos to inmates.
In 1982 the Attorney General of California ruled that showing a purchased video that had a “For Home Use Only” notice on it was a public performance, and that showing those films to prisoners without a public
- ↑ 17 U.S.C. § 101 (2006).
