The Right of Public Performance

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 82

Another significant exclusive right under section 106 of the CopyrighAct is the right "to perform the copyrighted work publicly." It is a particularly significant right for dramatic works, for motion pictures, and fomusical works. The right of public performance under section 106(4) inot accorded to sound recordings. Thus, when a song recording ibroadcast over the radio, it is potentially a copyright infringement of thsong, but it is not an infringement of the sound recording; the songwrite(or other copyright owner in the song) can claim a royalty, but neithethe record company nor the recording artist can.

Performance

Section 101 sets forth broad definitions of "perform" and "publicly."

To "perform" a work means to recite, render, play, dance, or act iteither directly or by means of any device or process or, in the case of motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

To perform or display a work "publicly" means(1) to perform or display it at a place open to the public or at anplace where a substantial number of persons outside of a normal circlof a family and its social acquaintances is gathered(2) to transmit or otherwise communicate a performance or displaof the work to a place specified by clause (1) or to the public, by meanof any device or process, whether the members of the public capable oreceiving the performance or display receive it in the same place or iseparate places and at the same time or at different times.

The definition of "perform" embraces not only live face-to-face performances but also "rendering" a work by any device or process, such aa phonograph or tape player and by radio or television transmission. Thdefinitive House Committee Report states that a performance can be effected through "all kinds of equipment for reproducing or amplifyinsounds or visual images, any sort of transmitting apparatus, any type oelectronic retrieval system, and any other techniques and systems not yein use or even invented."[132].

The television broadcast of a singer's rendition of a copyrighted song gives rise to a multiple series o"performances." As is stated in the House Report:

[A] singer is performing when he or she sings a song; a broadcastinnetwork is performing when it transmits his or her performanc(whether simultaneously or from records); a local broadcaster performing when it transmits the network broadcast; a cable television system is performing...