1908.3 Public Performances and Public Displays
Section 101 of the Copyright Act states that performing or displaying a work “publicly”
• “[T]o perform or display it 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; or”
• “[T]o transmit or otherwise communicate a performance or display of the work to a place specified [in the preceding paragraph] 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.”
17 U.S.C. § 101.
Although the statute does not define the term “public,” it “suggests that ‘the public’ consists of a large group of people outside of a family and friends,” such as “a large number of people who are unrelated and unknown to each other.” American Broadcasting Companies, Inc. v. Aereo, Inc., 134 S. Ct. 2498, 2509-10 (U.S. 2014).
The legislative history explains that a performance or display constitutes a public performance or a public display if it occurs “in a public place.” It also explains that a performance or display that occurs in a “semipublic” place, such as a club, lodge, factory, summer camp, or school, is considered a public performance or display. H.R. REP. NO. 94- 1476, at 64 (1976), reprinted in 1976 U.S.C.C.A.N. at 5677-78.
By contrast, a performance or display that occurs at “a gathering confined to [an] individual’s social acquaintances would normally be regarded as private.” Id. A performance or display that occurs during “[r]outine meetings of businesses and governmental personnel” would be normally considered private “because they do not represent the gathering of a ‘substantial number of persons.'” Id., reprinted in 1976 U.S.C.C.A.N. at 5678. Likewise, “an entity does not transmit [a work] to the public if it does not transmit to a substantial number of people outside of a family and its social circle.” American Broadcasting Companies, 134 S. Ct. at 2511.
The legislative history further explains that a public performance or a display includes “the initial rendition or showing” of a work, as well as “any further act by which that rendition or showing is transmitted or communicated to the public.” H.R. REP. NO. 94- 1476, at 63, reprinted in 1976 U.S.C.C.A.N. at 5676. “[F]or example, a sing[er] is performing when he or she sings a song; a broadcasting network is performing when it transmits [that] performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set.” Id., reprinted in 1976 U.S.C.C.A.N. at 5676-77.
A performance or display that is transmitted to the public is considered a public performance or a public display “even though the recipients are not gathered in a single place, and even if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission.” Id. at 64-65, reprinted in 1976 U.S.C.C.A.N. at 5678. “In other words, ‘the public’ need not be situated together, spatially or temporally” for a public performance or public display to occur. American Broadcasting Companies, 134 S. Ct. at 2510.
Moreover, “when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discrete communications it makes.” Id. at 2509. For instance, when an entity “streams the same television program to multiple subscribers, it ‘transmit[s] … a performance’ to all of them,” regardless of whether the entity makes the transmission “from the same or separate copies” or from “user-specific copies.” Id. (quoting 17 U.S.C. § 101 (definition of “perform or display a work ‘publicly'”)).