February 7, 2021- Public Performance defined
The current U.S. copyright law, codified in 1976 as Title 17 of the U.S. Code, sets out a number of separate rights afforded to copyright owners, including, as is relevant here, the right “to perform the copyrighted work publicly” 17 U.S.C §106(4).
To determine whether particular performances of copyrighted musical works are within the scope of the public performance right granted by Section 106(4) of the Law one must begin with the language of the statute itself. Congress specifically defined each of the terms “perform” and “publicly” in Section 101 of the Act as follows:
To “perform” a work means to recite, render, play, dance or act it….”
To perform … a work “publicly” means –
(1) to perform … 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 . . . of the work to a place specified by clause (1) or to the public, by means of any device or process…
The Copyright Law is clear: the playing of copyrighted music at a place open to the public - such as a sports bar or restaurant - would require permission from the copyright owner, unless specifically exempted by the Law. Section 110 provides for some exemptions. [We cover exemptions in a later post.] Liability attaches whether such performances are made by live performers, mechanically through audio files or other medium, or via transmission, such as through radio or television broadcasts.
The US Supreme Court decided in Herbert v. Shanley Co, 242 U.S. 591 (1917) the issue of performances of music occurring in a restaurant and courts have routinely applied this law to myriad types of users employing live or mechanical music including, but not limited to, performances of music in bars, taverns, hotels, fitness centers, restaurants, private clubs, skating rinks, retail stores, and those by radio and television broadcasters.
Unless exempt [Section 110(5)] the musical performances via televisions at your business are likely “public performances” under US Law. Accordingly, a public performance license is required to avoid liability for copyright infringement.
A user may negotiate such a license directly with the copyright owner. However, that can be difficult and costly. Also, since permission must be in place prior to a performance with countless copyright owners, and since by definition you cannot know in advance the content of a transmission by radio or TV, users routinely enter into license agreements with the various Performing Rights Organizations (PROs). Licenses are classified to fit the needs and operations similarities of different types of uses and venues.
