Performance Rights under the Copyright Laws

Under the Copyright Act, to perform a copyrighted work means “to recite, render, play, dance, or act it, either directly or by means of any device or process.” “Performing” a motion picture or other audiovisual work means “to show its images in any sequence or to make the sounds accompanying it audible.” The Copyright Act defines the term “publicly perform” to mean “to perform or display [a copyrighted work] 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.” “To perform or display” includes to broadcast at a place open to the public. Therefore, performances in concert halls, theaters, restaurants, bars, nightclubs, and other common public facilities are covered by the exclusive right of performance, whether the performance is live or broadcast to the public place, while the viewing of a movie in a private home is not a public performance and thus is not covered by the right of performance.

The Copyright Act provides certain exceptions to the exclusive right to publicly perform a copyrighted work. A copyrighted work may be performed in an nonprofit educational setting in which the teacher and students are all in the same place, the performance is done by the teacher or students, and the performance is done for educational purposes and not merely for entertainment. If the performance is of a movie or other audiovisual work, the copy of the copyrighted work that is shown must have been lawfully made in order to be exempt from copyright. In addition, the performance of a copyrighted work may be broadcast if it is transmitted to other educational settings such as remote classrooms primarily for the purposes of making the performance available to persons who are not able to access the main classroom because of disability or other circumstances. Also excepted from the exclusive public performance right are nonprofit performances, whether live or broadcast, as long as the promoters, organizers, and performers are not paid specifically for the performance at issue, any admission charge is used exclusively for nonprofit purposes, and there is no direct or indirect commercial advantage that is gained from the performance.

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