COPYRIGHT LAW 2004 Columbus School of Law The Catholic University of America Prof. Fischer April 5, 2004

PUBLIC PERFORMANCE AND DISPLAY RIGHTS What works do these apply to? See 106(4), (5), and (6) Basically if it moves it’s a performance (e.g. plays, dances, movies, public readings of books) and if not a display (e.g. paintings, sculptures, physical copies of books) For sound recordings - to perform publicly by means of a digital audio transmission, such as webcasting over Internet

PUBLIC PERFORMANCE 1. Public performance if perform at a place open to public or where a substantial number of persons outside of a normal circle of family and social acquaintances are gathered 2. Or if transmit to a place specified in clause (1) or to public by means of any device or process where members of public capable of receiving performance receive in same place or in separate places and at same time or separate times.

IS IT A PUBLIC PERFORMANCE If you rent a movie and show it at home to 12 friends and neighbors? If you show it at summer camp? If you broadcast it on network TV?

PERFORMING RIGHTS SOCIETIES What’s a performing rights society? What are the big 2 performing rights societies in the U.S.?

PERFORMING RIGHTS SOCIETIES ASCAP, BMI are the 2 biggest (SESAC is another small one) How does ASCAP work? What is a blanket license? Note that ASCAP can’t sue for infringement in its own name. How do you challenge ASCAP or BMI fees? What’s the difference between GRAND rights and SMALL rights?

RIGHT OF PUBLIC DISPLAY See section 106(5) Only applies to certain kinds of work See definition of “display” in section 101 How does First Sale doctrine apply to the right of display? See 109(c)

DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS Prior to section 106(6), no public performance right for sound recordings Added in 1995 (amendments to 106, 114). Why? Digital Performance Right in Sound Recordings Act of 1995: new statutory license Digital Millennium Copyright Act of 1998: expanded statutory license to include webcasting

FULL PERFORMANCE RIGHT IN SOUND RECORDINGS IN 1994 and 1996 Congress considered creating a full performance right in sound recordings, in addition to that for musical compositions. Is a general public performance right appropriate for sound recordings? How should it be squared with the existing public performance right for musical compositions?

What Public Interest Exceptions Exist For Right of Public Performance and Display? See section 110

What Exceptions Exist For Right of Public Performance and Display? Face-to-face teaching 110(1) certain instructional broadcasts 110(2) - note controversy over whether this is appropriate in a digital age for distance learning played/sung as part of religious service 110(3) nonprofit performance 110(4)

COMPULSORY LICENSES Section TV broadcast relays Section satellite transmission Section recordings of musical works Section jukeboxes Section public broadcasting Section digital sound recordings

Fair Use What is fair use? Why does copyright law have a doctrine of fair use?

Codification of Fair Use Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at what provision?

Codification of Fair Use Fair use was originally a judge-made doctrine, but it was codified in the 1976 Act at what provision? At 17 U.S.C. section 107 According to this section, how should a court determine whether a use made of a copyrighted work is a fair use that would exempt the use from liability for infringement?

Fair Use Factors (1) purpose and character of the use (commercial or non-commercial eg. educational?) (2) nature of copyrighted work (fact or fiction?) (3) amount and substantiality of amount used (4) effect on the market for the copyrighted work Does it make any difference if a work is unpublished?

Fair Use Factors (1) purpose and character of the use (commercial or non-commercial eg. educational?) (2) nature of copyrighted work (fact or fiction?) (3) amount and substantiality of amount used (4) effect on the market for the copyrighted work Does it make any difference if a work is unpublished? NO

Fair Use is VERY fact-specific Section 107 restates judicial doctrine of fair use Fair use is essentially an “equitable rule of reason” so there is no “generally acceptable definition” Each case must be decided on its own facts There are no bright-line rules, as Justice Souter has stated. Of course, this makes it hard for lawyers to advise clients on when a particular use of a copyrighted work will be a fair use.

Fair Use and Parody: The Acuff- Rose case How does Justice Souter apply the 4 fair use factors to analyze whether the rap song’s use of the Roy Orbison song is a fair use? Does it make any difference that the rap song is commercial? Does it matter if the parody is in bad taste, or not funny? Do you agree with Justice Souter’s analysis? Why or why not?