February 14, 2021 - Exemptions
Generally speaking, the exemptions called for under Section 110 are very limited in scope. Most musical performances you'll find in public spaces are not exempt unless they thoroughly meet one or more of these Section 110 exemptions. The Law provides exemptions in eleven specific contexts.
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
(1) FACE-TO-FACE TEACHING
(2) Certain GOVERNMENTAL & INSTRUCTIONAL ACTIVITIES
(3) Certain RELIGIOUS SERVICES
(4) Charitable activities
(5) Home-style and other limited radio and TV exemptions
(6) Horticultural and Agricultural fairs
(7) Point of Sale Exemption
(8) Handicapped exemption (transmissions)
(9) Handicapped exemption (single performances)
(10) Fraternal & Veterans Organizations
(11) Household viewing of authorized videos
(1) FACE-TO-FACE TEACHING- performance or display of a work by instructors or pupils in the course of face-to-face teaching. Section 110(1) exempts the performance or display 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;
(2) GOVERNMENTAL & INSTRUCTIONAL ACTIVITIES- except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities; (2)(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to (ii) officers or employees of governmental bodies as a part of their official duties or employment.
If -
(A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution;
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission;
(C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to - (i) students officially enrolled in the course for which the transmission is made; or (ii) officers or employees of governmental bodies as a part of their official duties or employment; and (D) the transmitting body or institution - (i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and (ii) in the case of digital transmissions - (I) applies technological measures that reasonably prevent - (aa) retention of the work in accessible form by recipients of the transmission from the transmitting body or institution for longer than the class session; and (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and (II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination.
(3) RELIGIOUS SERVICES- performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;
(4) CHARITABLE EXEMPTION- 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,
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;
(5)(A)- HOME STYLE EXEMPTION- except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes. In addition, 110(5) exempts certain limited uses of radio and/or television in food and beverage establishments and retail venues.(We will elaborate in a future post.)
(6) COUNTY FAIRS- performance of a nondramatic musical work by a governmental body or a non-profit agricultural or horticultural organization. This does not exempt concessionaires or for profit business establishments associated with such events, fairs or expositions.
(7) POINT OF SALE EXEMPTION- performance of a nondramatic musical work by a vending establishment open to the public at large without any direct or indirect admission charge, where the sole purpose of the performance is to promote the retail sale of copies or phonorecords or other media of the work.
(8) HANDICAPPED EXEMPTION- performance of a nondramatic literary work, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons
(9) HANDICAPPED EXEMPTION – for performance on a single occasion of a dramatic literary work published at least ten years before the date of the performance, by or in the course of a transmission specifically designed for and primarily directed to blind or other handicapped persons
(10) FRATERNAL AND VETERANS EXEMPTION IF PUBLIC NOT INVITED - performances in the context of a social function which is organized and promoted by a nonprofit veterans' organization or a nonprofit fraternal organization to which the general public is not invited, but not including the invitees of the organizations, if the proceeds from the performance, after deducting the reasonable costs of producing the performance, are used exclusively for charitable purposes and not for financial gain. For purposes of this section the social functions of any college or university fraternity or sorority shall not be included unless the social function is held solely to raise funds for a specific charitable purpose.
(11) HOUSEHOLD VIEWING OF AUTHORIZED VIDEOS - the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology.
