08/28/2017 by Attorney Jane D. Tucker
A common issue that community associations encounter is the proper use of copyrighted material. Whenever an association shows a movie or plays music at a common element/area location within the community, it most likely is using material that is protected by copyright law. If the association has not obtained a license allowing it to use the copyrighted material, it may be subject to penalties for copyright infringement.
Under the U.S. Copyright Act, original works of authorship fixed in a tangible medium of expression are protected from unauthorized use. The type of works protected include, without limitation, books, music, movies, photographs and paintings. The owner of the copyright has the exclusive right, among other rights, to perform the work publicly and to display the work publicly.
To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. This includes the playing of music, either live, or by a disc jockey or through the radio or otherwise, and the showing of movies and other videos.
To perform a work or display a work publicly means:
1. to perform it or display it at a place that is either open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered; or,
2. to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) 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.
Performances in places such as such as clubs, lodges, churches, schools and camps are considered to be performances in public places. This would include places such as an association’s clubhouse or pool area.
Use of copyrighted works without a license from the owner constitutes copyright infringement. The civil penalties for copyright infringement range from $750 to $30,000 per infringement, or, if the infringement was committed willfully, up to $150,000 per infringement. Each showing of a movie, or each song that is played, without a license may constitute a separate infringement.
Therefore, it is important that a community association obtain a license prior to using any works that are protected by copyright. A license for the performance of music (either by a disc jockey, a live band, through the radio or otherwise) must be obtained from one or all of the three music licensing companies, Broadcast Music, Inc. (BMI), The American Society of Composers, Authors and Publishers (ASCAP) or the Society of European Stage Authors and Composers (SESAC). Similarly, a license to show movies must be obtained from one of the movie licensing performance rights organizations, such as Movie Licensing USA.
Jane Tucker is Of Counsel with Vandeventer Black in the firm’s Norfolk office. Jane concentrates her practice in intellectual property law, business transactions, ERISA and employee benefits matters, and creditors’ rights law.
Jane’s intellectual property practice involves trademark and copyright registration, as well as protection, sale and/or licensing of all forms of intellectual property, including trademarks, copyrights, patents, and trade secrets. Jane was recently named as one of Virginia Business’ “Legal Elite” in the area of intellectual property law.
This article is intended to bring awareness to this topic and is not meant to serve as legal advice. If you have questions about copyright law, please contact Jane Tucker at firstname.lastname@example.org, 757-446-8625.