1. Class 12 Copyright, Spring, 2008 Performance and Display Rights Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-08 Randal C. Picker. All Rights Reserved.

2. August 27, 2015Copyright © 2005-07 Randal C. Picker2 106. Exclusive rights in copyrighted works n Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: u (1) to reproduce the copyrighted work in copies or phonorecords; u (2) to prepare derivative works based upon the copyrighted work;

3. August 27, 2015Copyright © 2005-07 Randal C. Picker3 106 (Cont.) u (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; n Note the Missing u Sound recordings

4. August 27, 2015Copyright © 2005-07 Randal C. Picker4 106 (Cont.) u (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, w to perform the copyrighted work publicly n Note the Missing u Sound recordings

5. August 27, 2015Copyright © 2005-07 Randal C. Picker5 102(a) Types of Works n Works of authorship include the following categories: u (1) literary works; u (2) musical works, including any accompanying words; u (3) dramatic works, including any accompanying music; u (4) pantomimes and choreographic works;

6. August 27, 2015Copyright © 2005-07 Randal C. Picker6 102(a) Types of Works u (5) pictorial, graphic, and sculptural works; u (6) motion pictures and other audiovisual works; u (7) sound recordings; and u (8) architectural works.

7. August 27, 2015Copyright © 2005-07 Randal C. Picker7 Limits on 106(1), (2) and (3) n Rights under 106(1), 106(2) and 106(3) do not depend on type of work, BUT … u Sec. 113 limits rights for pictorial, graphic and sculptural works u Sec. 114 limits rights for sound recordings u Sec. 115 limits rights for nondramatic musical works u Sec. 120 limits rights for architectural works

8. August 27, 2015Copyright © 2005-07 Randal C. Picker8 Limits on 106(1), (2) and (3) u Sec. 121 limits rights for nondramatic literay works for the blind or other persons with disabilities

9. August 27, 2015Copyright © 2005-07 Randal C. Picker9 106 (Cont.) u (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, w to display the copyrighted work publicly;

10. August 27, 2015Copyright © 2005-07 Randal C. Picker10 101: Perform n To “perform” a work means u to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

11. August 27, 2015Copyright © 2005-07 Randal C. Picker11 101: Display n To “display” a work means u to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

12. August 27, 2015Copyright © 2005-07 Randal C. Picker12 Legislative History Statement on Scope of Performance Right n H.R. 94-1476 u “Thus, for example, a singer is performing when he or she sings a song; a broadcasting network is performing when it transmits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast;

13. August 27, 2015Copyright © 2005-07 Randal C. Picker13 Legislative History Statement on Scope of Performance Right n H.R. 94-1476 u a cable television system is performing when it re-transmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set.”

14. August 27, 2015Copyright © 2005-07 Randal C. Picker14 101: Publicly n To perform or display a work “publicly” means ‑‑ u (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

15. August 27, 2015Copyright © 2005-07 Randal C. Picker15 101: Publicly u (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.

16. August 27, 2015Copyright © 2005-07 Randal C. Picker16 101: Transmit n To “transmit” a performance or display u is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

17. August 27, 2015Copyright © 2005-07 Randal C. Picker17 Playing the Radio n Hypo u Songwriter writes music and lyrics for new work u Artist records song with permission of Songwriter u Radio station plays song over the air and heard by Listener at home n Copyright issues?

18. August 27, 2015Copyright © 2005-07 Randal C. Picker18 Answer

19. August 27, 2015Copyright © 2005-07 Randal C. Picker19 Answer

20. August 27, 2015Copyright © 2005-07 Randal C. Picker20 Answer

21. August 27, 2015Copyright © 2005-07 Randal C. Picker21 [ASCAP]

22. August 27, 2015Copyright © 2005-07 Randal C. Picker22 DVD Warning n Warning u The motion picture contained in this videodisc is protected under the copyright laws of the United States and other countries. This disc is sold for home use only and all other rights are expressly reserved by the copyright owner of such motion pictures. Any copying or public performance of such motion picture is strictly prohibited and may subject the offender to civil liability and severe criminal penalties. (Title 17, United States Code. Section 501 and 506)

23. August 27, 2015Copyright © 2005-07 Randal C. Picker23 First Sale Doctrine? n How is this consistent with Sec. 109? u Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

24. August 27, 2015Copyright © 2005-07 Randal C. Picker24 The Movie Theater n Hypo u I own a movie theater u I buy or rent videos/DVDs and play them in the theater: I advertise The Lion King at 2:00 on Saturday u I charge admission to watch the movie to anyone who pays the fee n Copyright violation?

25. August 27, 2015Copyright © 2005-07 Randal C. Picker25 Answer

26. August 27, 2015Copyright © 2005-07 Randal C. Picker26 Renting … n Hypo u Store rents videos u People take them and play them at home n Copyright violation?

27. August 27, 2015Copyright © 2005-07 Randal C. Picker27 Answer

28. August 27, 2015Copyright © 2005-07 Randal C. Picker28 Renting … n Hypo u Store rents videos and VCRs/DVD players u People take them and play them at home n Copyright violation?

29. August 27, 2015Copyright © 2005-07 Randal C. Picker29 Answer

30. August 27, 2015Copyright © 2005-07 Randal C. Picker30 Renting … n Hypo u Hotel rents meeting rooms u Some people show up and have meetings; others show up and play videos on equipment they bring with them n Copyright violation?

31. August 27, 2015Copyright © 2005-07 Randal C. Picker31 Columbia Pictures v. Aveco n Core Facts u Aveco rents rooms with equipment to play videos u Rooms hold between 2 and 25 people u Customers have complete control over playing of videos u Aveco doesn’t allow “unrelated groups of customers” to watch together n Copyright violation?

32. “To Do and To Authorize” n S. Rep. 94-473 u “The exclusive rights accorded to a copyright owner under section 106 are ‘to do and to authorize’ any of the activities specified in the five numbered clauses. Use of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers. August 27, 2015Copyright © 2005-07 Randal C. Picker32

33. “To Do and To Authorize” n S. Rep. 94-473 u “For example, a person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting it to others for purposes of unauthorized public performance.” n What does this mean? What is at stake? August 27, 2015Copyright © 2005-07 Randal C. Picker33

34. August 27, 2015Copyright © 2005-07 Randal C. Picker34 [GI: Saul]

35. August 27, 2015Copyright © 2005-07 Randal C. Picker35 [GI: 1 st Picture]

36. August 27, 2015Copyright © 2005-07 Randal C. Picker36 [GI: Full Size]

37. August 27, 2015Copyright © 2005-07 Randal C. Picker37 [GI: Unframed]

38. August 27, 2015Copyright © 2005-07 Randal C. Picker38 Building a Search Engine n Hypo u Google wants to provide search services u Sets up service in which web pages will be indexed unless page opts out u Indexing means copying text and creating thumbnails of images n Copyright issues?

39. August 27, 2015Copyright © 2005-07 Randal C. Picker39 Understanding Perfect10 n What is the case about? u Given that Perfect10.com can opt out of the Google crawl and Google will respect that, what is the issue? u Should we treat thumbnail images and in- line link images differently?

40. Display, Distribution and Derivative Works n Three Questions u Who displays an image? The server where it is stored? The entity providing the html code to invoke the presentation of the image? The creator of the browser? The person who clicks the link? Someone else? u Same questions re distribution u Is an in-line linked page a derivative work? August 27, 2015Copyright © 2005-07 Randal C. Picker40