by : Music Law, November 2009

Do Ringtones Constitute A Public Performance?

Do Ringtones Constitute A Public Performance?

On October 14th, 2009, the performing rights society ASCAP, and all the publishers, songwriters, and composers it represents, suffered a major blow when a federal judge in New York ruled against their claim of copyright infringement when a cell phone’s musical ringtone goes off in public. The ruling stated that, “when a ringtone plays on a cellular telephone, even when that occurs in public, the user is exempt from copyright liability, and [the cellular carrier] is not liable either secondarily or directly.”
ASCAP argued that when a cell phone’s musical ringtone goes off in public it meets the standard definition of a public performance, likening it to music being played in a restaurant, and therefore their clients were entitled to be compensated. However, ASCAP was directed to the provision in the Copyright Act under section 110(4) where it states that performances are exempt from royalties when done “without any purpose of direct or indirect commercial advantage.” The court cited this provision in its ruling while adding that, “consumers do not play ringtones with any expectation of profit.” The court also ruled that mobile carriers are not liable because they do not receive any additional profits each time a musical ringtone plays.
This ruling has a significant impact on both consumers and the mobile carriers supporting them. For consumers, it means they never have to worry about owing performance royalties when their cell phone’s musical ringtones sound. More importantly, it helps to further clarify the limitations and exemptions on public performances provided by the Copyright Act in section 110. For example, this ruling helps solidify the right to do seemingly mundane tasks such as listening to music in your car with your windows down, playing a radio while at a beach, and even singing happy birthday at a local family spot.
For cell phone carriers, it sets a precedent for future cases like ASCAP’s still pending lawsuit with AT&T. However, AT&T should take comfort in Verizon Wireless’s recent victory, since this case is essentially the same argument with a different company.
Unfortunately for ASCAP and other similar companies like BMI and SESAC, this blow comes at a time when profits in the music industry as a whole are quickly shrinking.
Additionally, this ruling helps highlight a recurring problem with copyright law in the digital age of music. As newer forms of manipulating digital raw material become introduced, it inevitably raises more questions on the legalities of said manipulation. Combine this with the music industry’s different sectors and their search for new forms of revenue streams, and you get a recipe for many lawsuits.

By Brian Orlando

Sources:
http://www.eff.org/deeplinks/2009/10/court-rules-phones-ringing-public-dont-infringe-co
Sheffner, B. “Legal Matters”, Billboard, Nov. 7

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