Mbu 2520 spring 2018 chapter 7

MBU 2520 Spring 2018 - Eric M. Griffin
The Public Performance Right
The Display Right
1

The COPYRIGHT Bundle of Rights
.
Under the US Constitution, Copyright guarantees an exclusive “Bundle of Rights” to
Authors/Creators. This essentially creates a ”Limited Duration Monopoly.”
The Bundle of Rights: RDPDDD
1. Reproduction: Right to make copies. Mechanical Royalty
2. Distribution: Sale to the public resulting in transfer of ownership of that copy
3. (public) Performance: Performance Royalty. Collected by PROS, etc.
4. Derivative: Synch Royalty, Sampling.
5. (public) Display. Not as common with music.
6. (public performance of Sound Recording) via DIGITAL AUDIOTRANSMISSION. 2

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The Public Performance Right:
Section 106(4) of the © Act gives owners the Right to perform and to authorize others
to perform their works publicly. (Not absolute and subject to limitations.)
 This right does NOT apply to Sound Recordings, only Compositions (except
in regards to digital transmissions).
What is a “Performance?” Very broadly stated and incudes the initial rendition of
the work as well as any further act which then transmits or communicates the
work. As such, the Right covers live performance, recorded performances and
transmitted performances.
3

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What is “Public?”
4 categories:
1. Performed at a place “open to the public.” (May charge a fee.)
2. Performed at a place where a substantial number of people (not just family &
friends) are gathered. (no specific # given)
3. Transmitted to a place open to the public or where a substantial number of
people (not just family & friends) are gathered. (no specific # given)
4. Transmitted by a device, regardless of whether the public receives at the
same or different time. No audience required. Must only be the possibility.
Transmitted = communicated by device that enables sound//image to be
Received beyond the location of origin. 4

.
What is “Public?”
Transmission MUST be capable of reaching a public audience, even if it did
not.
Downloads = Private Performance (The music is delivered but NOT performed.)
The performance may occur after downloading but not at the same time.
Streaming = Public Performance
5

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Performance Rights Organizations (PROs)
What do they do?
1. Issue performance licenses and collect fees.
2. Monitor public performances.
3. Pay songwriters and publishers based on performances.
Most licenses ae blanket licenses. May perform any music in the PROs repertoire.
Fee based on potential audience size, gross revenues, amount of music used.
Performance of music in a dramatic work (like a play) must be approved by owner.
6

8
The Major Players: The PRO’s
• Performance royalties are paid by radio
stations, venues, and TV networks to
Performing Rights Organizations like
ASCAP, BMI, SESAC, and SOCAN (in
Canada) who then distribute the money
to their affiliated songwriters, composers
and publishers
• What’s their position?
The PRO’s are very active defending the
interests of publisher and songwriter
members. They’ve always played a key
role in music industry/technology issues
and are a strong asset in national
legislation movements for the
publishing/songwriting community.

9
The Major Players: The PRO’s
• Anticipate more legal battles between the PRO’s
and digital licensees. Until a genuine debate on
Capitol Hill takes place for the Next Great
Copyright Act, the PRO’s will continue to slug it
out with digital licensees one by one.
• SOUND EXCHANGE – Collects the digital
performance royalty for Featured Artist and
Owner of Sound Recording from non-interactive
digital sources. (satellite radio providers, cable
tv music, and webcasters) Admin fee of 4.9%

Public Performance Royalties
• Impossible to police every club and radio station in the country
and make them get a separate license for every song they play.
• Blanket Licenses – covers all of the music that a particular
performance rights society represents.
• The blanket license fee gives the user the right to perform all
of the songs controlled by all of the publishers affiliated with
that society
• ASCAP, BMI, and SESAC are the biggest in performance rights
societies U.S.
10

Public Performance Royalties
• Writers are paid directly by the societies with which they are
affiliated.
• A writer’s performance earnings (radio,T.V., clubs,
restaurants, etc) are not paid to the publisher, but paid directly
to the writer.
• Writers can only affiliate with one society.
• Publishers can affiliate with both ASCAP and BMI (and SESAC,
if they want)
11

How Do Societies Keep
Track?
• BMI requires licensee stations to keep logs of all the music they
play; rotating between the stations for about 3 24-hr days per
year.
• BMI projects from those logs to the entire country
• BMI also uses a digital listening service that monitors major
stations, matches the to a database and reports what it hears.
• ASCAP doesn’t use station logs.They use a digital monitoring
service to listen to hundreds of thousands of hours of
programming and extrapolate that for the rest of the country.
Radio
12

Track?
• T.V. stations are required to keep cue sheets
– Lists all songs played, how long it was played, and how it was used: theme,
background, etc.
Cue sheets are filed with the societies and specific dollar amounts are paid for each
song and type of use
Amount also varies with size of market; Network pays a lot more than local.
ASCAP and BMI supplement cue sheets with digital monitoring of broadcasts.
Television
13

How Do
Societies Keep
Track?
• Societies now pay for domestic live performances, but
only for the top 200 grossing tours according to
PollStar.
• Pay is based on set lists
• BMI recently started tracking sports stadiums and
arenas.
Live Events
14

Track?
ASCAP, BMI, and SESAC are not permitted to collect public performance monies for
motion pictures shown in theaters in the U.S.
Reasons are historical and political
– Foreign film performance monies can and are collected.
– Can be substantial as they are a percentage of the box office receipts.
– Fees are collected by local societies, then turned over to ASCAP, BMI, and SESAC
Motion Picture Performance Money
15

21
LEGISLATION – 100% Licensing
In 2016 the DOJ began an investigation into 100% Licensing.
Today, and historically, BMI and ASCAP, and the licensees who use your
music, have operated under a model where each PRO collects for and
pays out for only the shares of musical works each represents in its
respective repertoire; this practice is known as fractional licensing. It
allows a co-owner to license only their own share in a work and receive
direct payment from their PRO for that share. To put it simply, each PRO
collects and pays their members for their share of a co-written song under
our specific valuation system

22
100% licensing would allow any one co-owner of a work to license 100%
of the work without needing the permission of the other co-owners.
Essentially, each writing partner could have 100% control over the
licensing of your song, without your say, subject only to an obligation to
account to you for your share of licensing revenues.

23
What happens with 100% Licensing?
In an example where a BMI writer writes with ASCAP:
• ASCAP could license co-written works at ASCAP’s own
rate, not BMI’s.
• ASCAP could reduce payment by its own overhead rate
even before it enters BMI’s distribution system causing
double fees.
• writer could be subject to ASCAP’s distribution
methodology, not BMI’s.
• Distributions could be delayed by this process.
If this interpretation were put into action, in order to avoid
this and ensure your PRO licenses your share in co-written
works, you would have to collaborate only with other same
PRO writers.

24
LEGISLATION – Songwriter’s Equity Act
In March of 2015 a bipartisan group reintroduced the Songwriter Equity
Act (H.R. 1283 and S. 662) in the 114th Congress.
This legislation, which was first introduced early 2014, is important to
music creators because it addresses two outdated sections of the US
Copyright Act that currently limit your ability to get paid fairly when
your music is streamed.
Section 115 of the law sets conditions by which mechanical
royalties are set, but doesn't include not allowing a rate
court to consider other royalty rates as evidence.
Section 114 of the Copyright Act prohibited rate courts for
considering rates paid to recording artist when setting
songwriter royalty rates.

25
LEGISLATION – Songwriter’s Equity Act
Impact of a rate disparity is that the value of the
performance of a sound recordings is at a level
approximately 12 times greater than the actual musical
compositions from which they are created.
Simply put: The rate courts should be able to look at
evidence of other rates when setting the rates that
songwriters are to be paid.
i

26
LEGISLATION – DOJ Consent Decrees
ASCAP and BMI are governed by “consent decrees” originally
issued by the US Department of Justice (DOJ) in 1941 (ASCAP)
and 1966 (BMI) to curb the anticompetitive tendencies of the
publishing sector. (Monopoly) Intended to promote
competition in the marketplace for musical works,
Music publishers, PROs and some songwriters have asked the
DOJ to eliminate or modify the existing consent decrees due
to concerns over rate-setting and other perceived limitations.
Government regulators have solicited public comment and are
currently deciding what approach—if any—to take.
PRO Income comes from Public performance of the
Composition. BMI reported distributing a record $977
million in revenue in 2014. Who collects public
performance of the Sound Recording?

27
Why do the consent decrees exist in the first place?
Consent decrees are limitations agreed upon by parties in response
to regulatory concern over potential or actual market abuses. It
was a trade off to allow them to be monopoly-like without having
to face further regulation or break up.
The consent decrees encourage ASCAP and BMI to compete with
one another to attract licensees and recruit new
songwriter/publisher members.
Michael O’Neil – BMI Testimony to Congress
https://www.c-span.org/video/?c4500983/bmi-consent-decree

28
What do the consent degrees do?
1. Only Performance Rights: ASCAP and BMI can only
administer performance rights, not any other, often
related, rights.
2. Non-Exclusive Licenses: PROs must have non-
exclusive licenses, meaning that publishers retain the
ability to directly license their catalogues.
3. Required to Grant License: ASCAP and BMI are
required to grant a license to any party that requests one.
This license is then valid while the two parties attempt to
negotiate a rate.
4. Rate Courts: If the two sides are unable to reach an
agreement on a rate, the dispute is settled by a special rate
court, which was created under the consent decree.

29
2012 - Pandora filed a lawsuit against ASCAP in rate court.
Pandora said that ASCAP was failing to set “reasonable” license
fees for them and sought relief in the courts. However, the issue
changed from royalty rates to a different question, whether
publishers could pull their digital rights from ASCAP and other
PROs while staying with the PROs for other licensing, such as to
bars and restaurants. The court ruled they can’t do that, that
they were “all or nothing” if they chose to partner with a PRO.
However, shortly after the ruling, the DOJ, at the request of
ASCAP and BMI, began to look at reviewing the terms of the
consent decrees, which coincided with a hearing by the House
Judiciary committee on the subject of music licensing.
The reasons for the reforms and the
proposals are important to understand.

30
Changes being considered:
1. Whether content owners should be able to pull out of
PROs for certain types of rights, such as digital rights.
2. Whether to replace the rate court, which is a federal court
with all of the expense of a federal lawsuit, with
mandatory arbitration.
3. Whether PROs should be able to grant rights beyond
performance rights.
4. In general, whether the consent decrees are helping or
harming competition.

31
Benefits for songwriters:
•More level playing field in which all composers, from emerging young
writers to veteran hitmakers, are treated the same
•Writer’s share goes to writer without going to publisher first.
•Prevent ASCAP and BMI (or their members) from playing favorites with
one service over another, which allows for new radio stations and music
platforms to more easily enter the marketplace.

32
Benefits for independent publishers:
• A performance of a song published by a small independent publisher
is worth the same as any other.
• Allow for efficiencies that are responsible for the tremendous
growth of AM/FM and digital radio, which has expanded the pie for
publisher compensation.
• The current system also means that smaller, independent publishers
can make their catalog available to potential users just as easily as
their multinational peers.

33
Benefits of Consent Decrees for Licensees
• New services that may not have the capital or clout to cut
direct deals at the rates demanded by the big publishers.
• Reduce concerns of copyright infringement for licensees
using a blanket license: if the agreed upon fee is paid, they
have access to the entire repertoire of works in covered by a
PRO, secure in the knowledge that the PRO will pay
songwriters and publishers directly.

34
Criticisms of the consent decrees
•Publishers and PROs often criticize the consent decrees for
being “outdated.”
•Rate setting procedures established by the decrees have
resulted in unreasonably low royalty rates.
•Publishers wish to directly license their catalog and use the
PROs simply as a royalty collection and distribution agency
allowing them to secure far higher rates for their catalog
•The process through which rates are determined can lead to
expensive litigation that can reduce the capital available to
ASCAP and BMI to provide better service to members

35
What the major publishers and PROs want
•ASCAP and BMI have stated that the consent decrees should be eliminated or
gradually phased out. OR they should be allowed to bundle other rights under their
services offered to members, including mechanical royalties and synch licenses.
•Arbitration.
•Use “interim rates” to cover periods being negotiated.
•The major publishers have threatened to remove their entire catalogs from the PROs
if the consent decrees aren’t either gotten rid of or heavily modified to serve their
interests.To avoid this outcome—which would surely weaken the relevance of the
PROs—ASCAP and BMI advocate for partial catalog of digital rights by the publishers
in exchange for the ability to bundle other rights.

36
Early July 2015 – Sony /ATV presented the “nuclear option.” If there was not a resolution
acceptable to the publishers,they would consider withdrawing 100% from the PROS.
What might happen?
 Independents would lose benefit of collective bargaining likely
leading rates to plummet.
 Independents would have to take over the significant operating
costs no longer being paid by the majors.
 Perhaps a disastrous effect on innovation in the streaming
marketplace. Streaming services would be forced to negotiate
licenses with the three major publishers, and possibly some of the top
independent publishers, in addition to obtaining licenses from ASCAP,
BMI, and the third PRO, SESAC. The combined cost of these licenses
would likely prove too great for any new startup to bear.

.
Limitations on Performance Rights
1909 © Act applied the Performance Right ONLY to for-profit performance. This was
hard to regulate/measure, so the 1976 © Act made things more clear.
1976 © Act (Section 110) provides a number of exemptions for uses such as
educational, nonprofit, or charitable uses. WHY? Public Interest.
F-T-R-N-H-F-R-N or FF-RR-NN-TH
(1)Face-to-face teaching activities;
(2)The Teach Act (allows the educational use of a copyrighted material in
digital for in certain circumstances);
(3)religious services (section 110(3))
(4)nonprofit performances of nondramatic literary or musical works
(section 110(4));
37

.
Limitations on Performance Rights (cont.)
(5) The Homestyle Receiving Apparatus Exemption (Section 110(5) provides and
exemption for business who play radio or TV broadcasts on standard radio or
TV equipment);
6) The Fairness in Music Licensing Act (provides that certain business that perform
music received from licensed radio, TV, cable, and satellite broadcasts are
exempt from having to obtain permission to publicly perform music within their
establishment);(
7) Retail record sales (Section 110(7) provides an exemption for performances of
nondramatic musical works in connection with the sale of phonorecords and/or
sheet music that embody the works);
8) Noncommercial Broadcasting (Section 118 of the Copyright Act provides for a
compulsory license permitting the performance of published, non-dramatic
musical works).
38

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1976 © Act (Section 110) provides a number of exemptions for uses such as
educational, nonprofit, or charitable uses. WHY? Public Interest.
1. Face to Face Teaching at a non-profit institution.
a. Only by students or teachers. (Band playing at school = NO. Band member
playing while teaching a class = YES)
b. In course of face to face teaching and NOT merely entertainment. Does not
apply if performance is broadcast.
c. Location must be a nonprofit institution. (Not an exercise class at a gym.)
d. Must be a classroom or area dedicated to instruction. (Need not be a
full-time classroom. School theater OK for class not for performance of
a play or program.
39

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TEACH Act of 2002 (Technology, Education and Copyright Harmonization Act)
- Allows use of © material is digital form for educational purposes in certain
circumstances.
1. Allows Universities an exemption for Online courses.
2. Addresses greater risk of infringement due to reproduction or distribution.
a. Instructor or student in accredited, nonprofit institution
b. Institution must have a policy of © compliance and have it readily available
c. © works sold or licensed specifically for distance learning may NOT be used.
d. Illegal copies of © works may not be used.
e. If possible, amount and duration should be same as if in a typical classroom.
f. Use should be an integral part of course and not just for entertainment.
g. Access to © material limited to those enrolled in course and only for the time
they are taking the course. Limited using technological means.
h. Make students aware that material is © and not to be used beyond course. 40

.
Example: Under the TEACH Act a music history teacher COULD make legally
purchased musical works available to students in a similar manner as an in class
session, as long as it is students enrolled in the course, and used for instructional
purposes. The same teacher CAN’T make a textbook available to the class digitally.
NOTE: Those uses which do not qualify for an exemption under the 1976 © Act or
the TEACH Act might be able to get excused as Fair Use. But it’s best to try to fit it
within the exceptions before trying to apply a Fair Use defense.
41

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RELIGIOUS SERVICES
Section 110(3) Provides an exemption for performance of nondramatic literary
works and dramatic musical works of a religious nature IF “in the course of
services at a place of worship or other religious assembly.
 Because this applies to both dramatic and non-dramatic works, masses and
choral services may be exempt. Does NOT apply to secular works containing
religious content. (Performance of Jesus Christ Superstar is NOT EXEMPT
because it is a secular work.)
 Must be in the course of religious services. (Not fundraising, entertainment,
educational, or social programs at church = NO)
 Must be at place of worship. (Mass in park = NO) 42

.
Nonprofit Performances of Nondramatic Literary or Musical Works
Section 110(4) = Exception for Certain nondramatic literary or musical works
1. Doesn’t include Transmissions of Performances (playing recorded music = OK)
2. Must be Nonprofit
3. Performers, promoters, organizers can’t receive compensation.
4. Cannot be any admission fee unless proceeds go only to education, religious, or
charitable purposes. © Owners can say NO if they don’t support the charity.
43

.
Homestyle Receiving Apparatus Exemption
Section 110(5) – Exempts some businesses who play radio or TV broadcasts
on standard radio or TV Equipment.
1. Must be a single device commonly used in private homes.
2. Cannot charge public to see or hear device.
3. Cannot be further transmitted to the public.
Examples: a) Radio connected to chain of external speakers = NO
b) Yet a mini-golf course with speakers was given a pass.
 results are inconsistent in the courts. This led to the Fairness in Music
Licensing Act of 1998…
44

.
Fairness in Music Licensing Act of 1998
• Tagged on to the 20 year extension of the © term.
• Much broader exemption (but doesn’t cover live)
1. Cannot re-transmit beyond establishement
2. Cannot charge admission
3. Must meet size requirements (restaurants & bars < 3,750sq/ft, retail < 2,000 sq/ft
(If too large, can meet if 6 or less speakers and no more than 4 per room. OR it
uses no more than 4 TVs, 1 per room, no > 55 inches each)
This act violates the Berne Convention and has resulted in fines against the USA
by the WTO (World Trade Organization)
45

.
Retail Record Sales
Section 110(7) provides exemption for Nondramatic musical works in connection with
the sale of phonorecords and/or sheet music embodying the works.
1. Open to public at large
2. No admission charge
3. Perform only for purpose of promoting sales
4. Not transmit performance beyond store
 Does not apply to internet or other sales beyond a brick & mortar store.
46

.
Noncommercial Broadcasting
Section 118 allows a compulsory performance license for published, non-dramatic
musical works by public broadcasters (non-commercial, educational broadcast
stations.) Rates are much lower than commercial broadcasters.
47

.

.
SOUND RECORDINGS & the Performance Right
Because sound recordings were not covered by © Act until 1972,
recording industry has wanted to add a performance right.
Pressure by the broadcast industries has stopped this so far.
Because of this, US radio does NOT pay any for use of SR. But overseas they do.
Therefore, US artists overseas do NOT get paid either.
Results in (arguably)
1) performers releasing inferior songs because they wrote them and they want to get
royalties;
2) performers asking unfairly for writing credit..
49

Concern over impact of digital technology led to much debate over the lack of
Performance right for the Sound recording. The debate was the losses by © owners
due to digital tech versus the public policy favoring advancing new technology. This
Act was the result of that debate. At the time, the Internet was NOT the issue, it
was cable and satellite transmissions. This soon changed…
Section 106(6) Granted a limited public performance right for sounds recordings.
1. DPRSA added a NEW exclusive right of public performance for the SR.
2. DPRSA expanded the mechanical to include digital formats.
Digital Performance Right in Sound Recordings Act of 1995
50

 Owners of SR shall have the exclusive right ”to perform the
copyrighted work publicly by means of DIGITAL AUDIO
TRANSMISSION. (subject to certain limitation, of course.)
D.A.T. is defined as a digital transmission “that embodies the
transmission of a sound recording.”
51

.
Limitations to this Performance Right:
1) Only applies to “digital” audio transmissions. ANALOG transmission are not
included. That means terrestrial radio!
2) Only applies when the recorded sounds are received beyond where they were
sent from. (Does not apply to live music or live performance of digital music.)
3) Only applies to sound recordings (not AV works)
4) Only applied to “Public” performance (as we have defined public).
52

.
Additional limitations are motivate by the interests of © owners in protecting
their works from performances that could easily be used to make high quality,
digital copies. Can you see why this is more worrisome than Analog?
The DPRSRA classifies DAT into 3 categories based on which ones are more
likely to cannibalize legal sales.
1. If the likelihood of cannibalization is very LOW = the use is exempt from
the digital performance right.
2. If the likelihood of cannibalization is very HIGH = a negotiated license is
needed.
3. If the likelihood is moderate = a compulsory license is available. 53

.
……SPOTIFY,TIDAL.PANDORA
54

.
55

Numerous legislative efforts have been made to expand the DPRSRA to include
analog performances. These are regularly opposed by broadcasters. Broadcasters
call this a “tax” on their promotional performance of musical works. They argue that
the promotional exposure should be enough.
56

EXEMPT Performances:
1. Do not give advance notice of recordings to be played.
2. Do not contain all of the songs from a release.
3. Are very unlikely to result in displacing a sale.
#1 = Non-subscription, non-interactive broadcast transmission. Terrestrial radio
stations licensed by the FCC that are ALSO broadcast over the Internet. Simulcasts.
HOWEVER, the © Office has issued a regulation requiring simulcasts to pay a
compulsory license.
Result: Terrestrial radio only needs performance licenses for compositions. Internet
simulcast of these stations requires licenses for both SR and composition.
57

Performances Subject to Compulsory Licenses:
Generally those instances less likely to displace sales – webcasting, satellite and
cable transmissions to subscribers, etc. (Example – Sirus/XM)
1. Non-Interactive
2. Content restriction = In a 3 hour period, NOT more than 2 consecutive songs or
more than 3 in total from a single SR or more than 3 consecutive songs of 4 total
songs by the same recording artist.
3. No advance notice – can specify type of music or next up
4. No Automatic Switching
5. Archived programs cannot be less than 5 hours in duration and cannot be posted
for more than 2 weeks. (changing songs doesn’t avoid issue)
6. Looped Programs cannot be less that 3 hours duration.
7. Programs of <1 hour that contain performances of recordings in a
predetermined order for which times have been announce in advance cannot be
transmitted more than 3X in a 2 week period. 4X for programs over 1 hour.
58

Performances Subject to Compulsory Licenses: (cont)
8. Must work to prevent scanning that identifies particular artists or recordings.
9. Cannot falsely suggest connection between © owner or artist with any product
or service.
10. Cannot aid and must cooperate in preventing copying by listeners.
11. Bootleg recordings cannot be transmitted.
12. Must identify, not prior to performance, the title, artist and album title.
13. Cannot interfere with any encoded identifying information or metadata
encoded in recordings.
59

How do you get a compulsory license? File Notice of Intent with © Office. You can
then make temporary copies of SR to use for streaming only which must be
destroyed within 6mo unless archival.
How is Compulsory Rate Set:
The CARP (Copyright Arbitration Royalty Panel) set original rates at $0.07 per 100
listeners for commercial use and $0.02 for non-commercial use, with $500 min
annual fee. In addition, webcasters must pay 8.8% for making temp copies of
recordings. This is subject to change.
Complaints by webcasters led to changes allowing smaller webcasters to pay a % of
gross revenues (10-12%) or annual expenses (7%) instead... They also have a
minimum of $2k for those with revenues under $50k and $5k for those over and up
to $1.25M.
60

Who collects this money?
SoundExchange issues license and collects license fees for digital performance of SRs.
By law, SoundExchange pays as follows after their admin fees:
50% to © owner of the SR (usually a record label)
45% to featured recording artist
2.5% to non-featured musicians (not members of recording artist group) (paid to AFM)
2.5% to non-featured vocalists. (paid to AFTRA)
The money collected for Recording Artists goes directly to them and is NOT generally
subject to recoupment provisions by a record company.
61

Performances Subject to Negotiated Licenses:
When there is a very high chance of displacing a sale, a negotiated license is needed.
1. Interactive transmissions and Subscription transmission not qualifying for any
other exception.
-The interactive nature of the transmission allows listeners to virtually replace to
original SR and displaces sales.
62

D.T. of a SR (DPD) or Download vs. Public Performance of a SR.
Definition = each digital delivery “of a SR which results in a specifically identifiable
reproduction by or for any… recipient of a phonorecords of that SR , regardless of
whether the DT is also a public performance of the SR…”
Master use licenses for transmitting the SR by a DPD MUST be contractually
negotiated.
See: F.B.T. Productions vs. Aftermath Records - Dispute w/Eminem concerning
the royalty due for downloads versus regular sales. The contract paid 12%-20% for
regular retail sales and 50% for licensed uses. The court was clear that the sale of a
DPD was a LICENSED USE of the SR.
63

.

.
The PUBLIC DISPLAY RIGHT
Section 106(5)- Right to display and authorize others to display © work.
Limited to the display of © works in COPIES and NOT PHONORECORDS.
Does NOT apply to Sound Recordings.
Does NOT apply to showing images sequentially (that’s a performance right)
Display = “show a copy of it, either directly or by means of a film, slide, tv
image or any other device or process, or in the case of a motion picture
or other AV work, to show individual images non-sequentially.
Includes the right to display the original AND reproductions of the work.
Infringement MUST be made in PUBLIC. (Public place or transmitted into a
public place.)
65

.
The PUBLIC DISPLAY RIGHT
ABKCO Music, Inc. v. Stellar Records, Inc. – manufacturer of Karaoke CD+Gs
(like a DVD) had compulsory licenses for recording and distributing the songs
for singers to sing along with. The publishing company for The Rolling Stones
sued claiming that they needed a display license to show the lyrics publicly.
*The court ruled that showing the lyrics required a display license in addition to
the compulsory licenses they already had.
66

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Limitations on Display Rights
1. Display of a Single Image at a Single Site.
Section 109(c) allows an owner of a copy to display it publicly if the copy was
lawfully made. Must be a direct display or projection of no more than 1 image at a
time to viewers present at the same location as the copy.
2. Display in Situations Where Performance is also Exempted.
If other performance exemptions apply, they may also apply to display rights.
Eg. face to face teaching, instructional transmissions, religious services, or
transmissions by noncommercial educational broadcasting stations.
Example: A church wants to show lyrics on a screen for choir. The religious
use exception may allow the display of the lyrics, BUT they still need a license
to reproduce the song lyrics (unless they have some Fair Use argument).
67

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Mbu 2520 spring 2018 chapter 7

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