Public performance copyrights: a guide to public place analysis.

AuthorKheit, John
  1. INTRODUCTION(**)

    "An' there began a lang digression About the lords of the creation."(1)

    "`Cause, remember, no matter where you go ... there you are."(2)

    Dip Diddler, an average guy, has just latched onto a couple of computing's latest fads: the ability to play and save music and movies on his DVD-equipped computer. Dip copies all 500 of his music CDs onto his laptop computer and makes a big ol' portable jukebox. Dip likes to rent DVD movies from his local video rental store to watch on his laptop on the way to work on the train. Strangers are often interested in the movies. Dip, being a friendly sort, lets them watch along during the train ride. When Dip gets to the office, he decides that he wants to copy all of the music on his laptop into his personal account on his work computer. His personal account, however, is really on a network server. In the midst of playing twenty or so songs for his officemates, Dip dances about foolishly, shaking in interesting rhythms, finally dropping down into a full alligator thrash to "In the Middle of the Road" by the Pretenders to the delight of all his officemates. Suddenly, FBI agents, who were secretly monitoring Dip's every action throughout the day, and every digital blip in the country, with their super snooper secret poop scooper chips, break down the doors and slap the cuffs on Dip. They take him to a cell where Bubba (who apparently is the prison Buddha, being in all prisons at all times) awaits. Dip's crime: Sections 101 and 106 violations, ma'am. He was caught performing in public.

    Cher, an officemate of Dip's, is shocked, having watched all of the foregoing transpire. She is a super savvy, suave, cyber freak and knows her public performance law. Cher thinks all capitalist pigs are insane for thinking that they can hog up all ideas in their decadent imperialist bundles of intellectual property. She is also quite smitten with "the Diddler." As a not-so-silent protest, Cher walks up to Dip's laptop, unplugs it from the network and plays "Stand By Your Man," smugly defying the Feds. One agent flinches and walks up to her saying, "Why, I oughta ... "but another holds him back. "Cool it, man, cool it. She's playing you, man. Don't lose it. Remember your 101." Cher kisses Dip and whispers "think of me." Then she flashes a smug smile at all the departing Feds, feeling victorious.

    Thereafter, Cher has everyone in the office bring down all of their music CDs, copying all of them onto a standard computer with speakers in a central area and uses it as a jukebox to play music in the background while people do file work. Sometimes she goes out to the public square and plays Dip's laptop boom box, forming Conga lines dancing to "Come On Ride The Train, It's A Choo Choo." Cher also sends pictures and letters to the Feds every day, showing how she and all of her friends play Dip's jukebox. Some of the eight-by-ten glossies sport her sticking out her tongue. But all of this can't mend her broken heart caused by losing Dip.

    Why did Dip get slammed while Cher did not? It all has to do with public performances.(3)

    1. Problem Defined

      Amazingly, a fundamental aspect of copyright law has yet to be resolved. Specifically, regarding public performance rights, the definition of what constitutes, a "public place" is unsettled; the courts splinter somewhat haphazardly when construing the metes and bounds of a public place with regard to public performances.(4) The inability to determine whether or not the performance of a copyrighted work took place in a public forum inhibits public performance copyright infringement analysis. As content delivery systems proliferate throughout the world, public performances of copyrighted works increase. This increasing import and use of the public performance right, coupled with the lack of clarity as to what binds and constitutes a public place for such performances, leaves both copyright owners and the public in the lurch.(5)

    2. Framework

      The purpose for going through the relevant public performance provisions and case law is to provide a synopsis of public place analysis. Each provision and case will be individually examined and the elements of public place analysis shall be framed into an overall public place constitution heuristic.(6) This heuristic will be embodied in various tables detailing the development of the current standard and containing a decision tree analysis flow chart of this standard. This article will, hopefully, convey the muddy and, at times, tenuous development of public place analysis. Moreover, it will present a heuristic that will explain and harmonize the apparent discord prevalent in this area of law.(7)

      Part I, section C of this article establishes my thesis. Section D then summarizes the findings, explaining what should embody the state of public place constitution law in a decision tree analysis flow chart.

      Part II of this article explores the legal analysis of public place constitution. Section A provides legal analysis with a short, general background regarding public performance copyrights. Part II continues by examining how public place constitution is affected by: transmissions of performances to the public (Section B); statutory ambiguities (Section C); how those ambiguities allow for judicial predetermination by merely shifting the temporal and spatial analytical focus (Section D); legislative history (Section E and throughout later sections); the nature of the place standard for public performance analysis and its components (Section F); and a harmonization and time line of the case law (Section G). Throughout Part II, a heuristic will be developed and embodied in a decision tree analysis flow chart for performing public place analysis.

      Finally, Part III provides a prognosis regarding the developed heuristic. The prognosis will evaluate the heuristic in varying situations in Section A; evaluate the significance of the heuristic to businesses in Section B; examine potential problems the heuristic may face from advancing technologies in Section C; and conclude in Section D.

    3. Thesis

      It is my contention that the courts have unwittingly established the metes and bounds of what constitutes a place for the purposes of a public performance. They have generated these parameters through various and apparently conflicting holdings by courts of appeals for several circuits. There are seemingly conflicting tests for determining if a place is public and thereby subject to an author's public performance right.(8) However, I believe these variances are reconcilable and actually form a coherent heuristic to determine the place of performance.(9)

    4. Summary of Findings

      The heuristic that determines what constitutes the metes and bounds of a place such that it is a public place within the context of public performance rights, and therefore, subject to an author's public performance right, is a composite of the statute and case law. The test is based upon a determination of the nature of the place in question and is embodied in the chart below.(18)

      This chart embodies a decision tree analysis that will guide the practitioner to the proper determination of whether a place is public or not. For purposes of this thesis, the major components of this analysis are whether there was a reasonable expectation of privacy, and whether there was a lack of control in exercising a performance. The outcome to those questions will determine how a court will look upon a place in an effort to determine if it is of a public nature.

      [TABULAR DATA 1 NOT REPRODUCIBLE IN ASCII TEXT]

      Depending upon the outcome of those questions, the court will either look to an entire establishment in determining if it is open to the public, e.g., an entire hotel; or it will focus on a more finite area where a performance is taking place, e.g. a single hotel room. The practitioner will find that this shift in focus is generally a determinative factor in deciding if a public performance took place.(12) Finally, after the proper focus is established, the nature of the location will be determined; i.e. is it open to the public or not.

  2. LEGAL ANALYSIS: CONSTITUTING A PUBLIC PLACE

    1. Background

      1. Exclusive Right

        An affixed(13) expression of an original work of authorship, i.e., the creation of a work of art,(14) results in a work protectable by 17 U.S.C. [sections] 106 of the Copyright Act and entitles an author or owner of the work to six basic exclusive rights:(15)

        [sections] 106. Exclusive rights in copyrighted works Subject to sections 107 through 121, the owner of a copyright under this title has the exclusive rights to do and to authorize any of the following: ... (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. The above subsections of the Copyright Act are a means for an owner of a copyrightable work to prevent others from reproducing, making derivatives, distributing, performing, or displaying their works. Sections 101 and 106 of the Copyright Act together define when and how authors may assert their exclusive rights. However, part of this "when and how" depends upon where the works are located. In particular, an author's ability to assert exclusive rights over the display and performance of his or her work, i.e., [sections] 106, subsections (4), (5) and (6), depends upon the work being located in a public place.(17) Thus, place constitution becomes a factor in infringement analysis.(18)

      2. Factors for an Infringement

        Section 501(a) of the Copyright Act...

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