“All the world’s a stage,” wrote Shakespeare in As You Like It, and he said as much in other plays. The public performance of creative works, including the work of songwriters, has to be seen in that context today. The advent of the Internet and digital technologies has blurred the lines of demarcation between public and private places, placing an undue burden on those experiencing or performing copyrighted works as to when a particular performance of a work necessitates obtaining a public performance license from the copyright holder.1
Under the current Copyright Act,2 a copyright owner has the exclusive right to control the manner in which members of the public listen, view, or otherwise apprehend musical works and other categories of creative works performed at places “open to the public.”3 But just when are places “open to the public?”
This article seeks to answer this question, and provide a judicially administrable framework for courts, musicians, music enthusiasts, and practitioners to use when navigating through the so-called “unsettled condition of the law”4 surrounding public performance.5
Copyright and Public Performance
United States copyright law is derived from the constitutional purpose of “promot[ing] the Progress of Science and useful Arts,” by granting authors a limited monopoly on their creative works.6 When it comes to music, each song you listen to has two distinct copyrightable elements: the underlying musical work,7 and the sound recording embodying that musical work.8 Importantly, the Section 106(4) public performance right regulates the public performance of musical works, and the Section 106(6) public performance right governs the public performance of sound recordings. In this essay, we will focus on the Section 106(4) public performance right.
With respect to Section 106(4), in order for an activity to be deemed a public performance, the activity must fall within the Copyright Act’s statutory definitions of both “public” and “performance.”9 In effect, courts treat these terms as two distinct concepts.10 Section 101 defines the public boundaries of the performance right, providing that, among other ways,11 a work is performed publicly, within the purview of Section 106(4), when it is “perform[ed] . . . at a place open to the public . . . .”12 Accordingly, the focus of the inquiry in determining whether a copyrighted work was publicly performed centers on the location where the performance occurred.
The circumstances surrounding advances in new technology and the public performance of musical works parallel those the film industry faced in the 1980’s with respect to the public performance of audiovisual works. The creation of the Internet and digital technologies has enabled the general public to turn their backyards into a concert hall. In the 1980s, a group of major motion picture studios13 shared concerns about the definition of the word “public,” as applied to the public performance right. At the time, consumers were beginning to experience works in private that traditionally were only publicly performed. The film industry began to initiate a series of test cases to determine the scope of the word “public” as used in Section 106(4), and these cases remain the standard in public place analysis.
The major motion studios’ first victim was a small chain of video rental stores, Maxwell’s Video Showcase (Maxwell’s), in Redd Horne, Inc. v. Columbia Motion Pictures. Maxwell’s exhibited copyrighted motion pictures for a fee in private viewing booths located on the store’s premises. The in-store viewing booths seated only four patrons at any one time, and the actual performance of the videos were handled by Maxwell’s employees. Ultimately, the Third Circuit decided that the video rental store’s showcasing operation did indeed constitute a public performance. The courts felt that the video establishments were places open to the public and thus the motion pictures were publicly performed, emphasizing that the services and accommodations provided at the private viewing booths were no different from those offered at a conventional movie theater, as they afforded any member of the public the opportunity to avail themselves of a motion picture on the stores’ premises, and the fact that the video stores provided popcorn and beverages to customers.14
With the Redd Horne decision settled into Third Circuit precedent, the studios decided to file another test case in the same jurisdiction. This time they sued another business, Aveco Inc., for engaging in activities similar to the video rental store chain in Redd Horne. Analogous to Maxwell’s, Aveco Inc.’s business centered around exhibiting videos to the public in in-store video booths. The Court again found that this sort of activity constituted a public performance. In addition to examining the “nature of the place” factor in making its determination that the video showcase enterprise at issue was a place open to the public, the Aveco court added an additional wrinkle to public place analysis by examining the extent to which the individuals experiencing the work controlled the performance.15 Writing for the majority of the Third Circuit Court of Appeals, Judge Stapleton dedicated a considerable amount of his opinion to analyzing the amount of control the video rental store’s customers had over the performance of the audiovisual work, namely for deciding whether the video store was subject to contributory liability16 for copyright infringement through the actions of its customers.17
Finally, the film studios decided to test the scope of the word “publicly” in an entirely different circuit, the Ninth Circuit, and in a situation arising from a radically different set of facts. In Professional Real Estate Investors, Inc., the studios claimed that a hotel was violating its public performance right by providing in-room videodiscs players and renting video discs to its guests.18 In examining the “nature” of the location where the performances occurred, a hotel room, the court distinguished the nature of the video stores in Redd Horne and Aveco from the hotel at issue in Professional Real Estate Investors, Inc. by explaining that the performances of the motion pictures in a guest’s hotel room were merely incidental to the primary purpose of the entire hotel, “the provision of living accommodations and general hotel services . . . .”19 Ultimately, the Professional Real Estate Investors, Inc. court, unlike the Redd Horne and Aveco courts, focused on the relationship between the performances at issue and the primary purpose of the place in which the performances occurred. Another factor bearing on the court’s judgment was whether the location in which the performance occurred affords its occupants a reasonable expectation of privacy.20 The court decided that that because hotel rooms are constitutionally protected areas under Fourth Amendment jurisprudence, the room is not a place open to the public.21
In the wake of Redd Horne Inc. and its progeny, two frameworks have been proposed to govern public place analysis, both of which utilize the three factors dispositive in the above-referenced cases: (1) the nature of the place; (2) the amount of control exerted over a performance; and (3) the reasonable expectation of privacy of those experiencing the performance.22 However, as a threshold matter, two of these factors are inappropriate in public place analysis.
First, the Aveco decision’s reliance on the “control” factor in making its public place determination is unfounded. A careful reading of the dispositive decision suggests that in Aveco, the Third Circuit primarily looked at the control factor in deciding only whether the video store should be subject to contributory infringement through the actions of its customers; in other words, this factor served no purpose for deciding whether the audiovisual works at issue were publicly performed, or the narrower question of whether the video store was a place open to the public.
Second, it is peculiar that the Ninth Circuit in Professional Real Estate Investors, Inc. relied on whether the place in question is a constitutionally protected area in deciding whether a place is open to the public.23 As an initial matter, the court in Professional Real Estate Investors, Inc. examined whether the hotel room’s occupants were afforded a reasonable expectation of privacy from the individuals’ perspective. In a sense this is correct, but courts often look at other objective factors in deciding whether an individual has a reasonable expectation of privacy. Notwithstanding the court’s error in applying the purported law, criminal principles should not be applied within the copyright context. For one thing, courts have not looked to criminal principles to interpret a specific term or phrase of the Copyright Act outside the ‘open to the public’ clause.24
Additionally, if courts were to apply the reasonable expectation of privacy to other copyright cases it would lead to absurd results. For example, under Fourth Amendment jurisprudence, an individual does not have a reasonable expectation of privacy in activities that anybody in the public can view.25 While using reasonable expectation of privacy principles may be an easy way for courts and academics to conceptualize the public/private distinction in the public performance right, in application, this may have disastrous outcomes for copyright law. For instance, consider this hypothetical: if someone is watching movie on a television in their backyard, and members of the public could view the television while riding in an airplane traveling in a publicly navigable airspace, the individuals would not have a reasonable expectation of privacy there, and thus, under Fourth Amendment jurisprudence, the exhibitions of the movie would constitute a public performance.26 Congress surely could not have intended for the public performance right to be construed so broadly.
In stark contrast to the recently proposed three-factor frameworks, a better approach to public place analysis is to apply a two-factor balancing test that encompasses the modified “nature of the place” factor articulated in Professional Real Estate Investors, Inc. coupled with a new factor, that of access. In effect, a court applying this test would first look to the relationship between the performances at issue and the primary purpose of the entire place in which the performances occurred. Then, in applying the second part of the test, a court would analyze whether anyone from the public could avail themselves to the performances at issue, and, particularly, whether anyone from the public could access the immediate space in which the performance occurred. Because the first factor is closely related to the economic rationale of copyright law, that of encouraging creativity, the first factor should weigh more on the analysis than the second factor.
Utilizing this article’s proposed framework would also further the fundamental purpose of copyright law, as it would help ensure that the author of the copyrighted work is receiving adequate compensation from the fruits of his labor. By focusing on the relationship between the performance and the primary purpose of the place in which the performance occurred, it would place less of a burden on those experiencing works in a non-commercial and non-systematic manner that would promote the overall purpose of copyright law.
By Brian A. Oliver
1. William Shakespeare, As You Like It, Act II, Scene VII (1623) (“All the world’s a stage, And all the men and women merely players; They have their exits and their entrances, And one man in his time plays many parts . . . .”).
2. Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified as amended at 17 U.S.C. §§ 101-805 (2012)).
3. See 17 U.S.C. § 101 (2012).
4. Prof’l Real Estate Investors, Inc., v. Columbia Pictures Indus., Inc., 508 U.S. 49, 64-65 (1993).
5. Regrettably, the United States Supreme Court had the opportunity to provide some guidance on the open to the public clause in Professional Real Estate Investors, but the Court sidestepped the public performance issue altogether and decided the case on other grounds. See generally id.
6. Const. art. I, § 8, cl. 8.
7. See Section 102(a) (providing that “[m]usical works, including work, any accompanying words” are categories of “original works of authorship”)
8. See Section 101 (explaining sound recordings “are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.”
9. See 17 U.S.C. § 101 (2012) (providing “[t]o ‘perform’ a work means 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.” One can perform
10. See e.g., American Broadcasting Companies, Inc. v. Aereo, Inc., S.Ct. 2507-2511 (Columbia Pictures Indus., Inc. v. Prof’l Real Estate Investors, Inc., 866 F.2d 278, 279-80 (9th Cir. 1989).
11. Aside from being performed at a place “open to the public,” as provided for in Section 101, an audiovisual work or motion picture can also be publicly performed in two other ways: (1) “to perform or display it 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 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.” See id. These two clauses are commonly referred to as the “substantial number of persons clause” and the “transmit” clause, respectively, but are outside the scope of this article.
12. Id. (“[T]o perform or display it at a place open to the public.”).
13. Specifically, Embassy Pictures, Paramount Pictures Corporation, Twentieth Century-Fox Film Corporation, Universal City Studios, Inc., Walt Disney Productions and Warner Bros., Inc.
14. Redd Horne, Inc., 749 F.2d at 159 (finding that because, inter alia, the business was organized primarily for the enjoyment of performances, “[t]he services provided by Maxwell’s are essentially the same as a movie theater.”); Aveco, Inc., 800 F.2d at 63.
15. See, e.g., Kheit, supra note 5; Adam Barrett Townshend, Crashing by Design: Toward A Uniform Standard for Public Place Analysis Under Federal Copyright Law, 79 Notre Dame L. Rev. 2045 (2004).
16. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 243 F. Supp. 2d 1073, 1089 (C.D. Cal. 2003) (quoting Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996)) (“Contributory infringement originated in tort and ‘stems from the notion that one who directly contributes to another’s infringement should be held accountable.”).
17. Aveco, 800 F.2d at 61.
19. Remember, in Aveco and Redd Horne, the exhibition of motion pictures was the primary purpose behind the establishment.
20. See Prof’l Real Estate Investors, Inc., 866 F.2d at 281.
22. See, e.g., John Kheit, Public Performance Copyrights: A Guide to Public Place Analysis, 26 Rutgers Computer & Tech. L.J. 1 (1999); Adam Barrett Townshend, Crashing by Design: Toward A Uniform Standard for Public Place Analysis Under Federal Copyright Law, 79 Notre Dame L. Rev. 2045 (2004).
23. See Prof’l Real Estate Investors, Inc., 866 F.2d at 281.
24. There is good reason for prohibiting criminal principles in copyright law, as our criminal rights are much broader than our civil rights.
25. See California v. Ciraolo, 476 U.S. 207, 213-14 (1986) (finding no reasonable of expectation of privacy in the activities conducted within one’s backyard when the public can see into the backyard from a legal vantage point).
26. Id. at 214 (determining that the public could easily see into the defendant’s backyard when flying in a plane within public navigable airspace).