Performance Rights for Copyrighted Videorecordings

Frequently Asked Questions

What is a copyrighted videorecording?

Copyright is a property right that gives the copyright owner of an original work a bundle of exclusive rights, which include the right to authorize or prohibit reproduction, derivative works, distribution, and public performance or display of that work.

Under present law, copyright exists automatically from the moment a work is fixed in a tangible medium of expression. The work may be published or unpublished. It is not necessary that the copyright be registered with the Copyright Office. As of March 1, 1989, a notice of copyright on the work is optional and its absence does not necessarily mean that the work is in the public domain.

The rights of copyright apply to videorecordings as well as to other works. It should be assumed that all videorecordings are protected by copyright unless verified otherwise.

What is "public performance"?

To perform or display a work "publicly" means--<

• to 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;
  
  
• 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.

(Title 17, U.S.C., Copyrights, Section 101, Definitions)

What does "home use only" mean?

In the case of motion pictures, including videorecordings, and of other audiovisual works, one of the exclusive rights of the copyright owner is to perform or display the work publicly. Unless videorecordings are sold or rented with public performance rights or are licensed for public performance, they should be considered "home use only" and should be restricted to private showings in the home to a "normal circle of a family and its social acquaintances." The only exception to this is the "face-to-face teaching exemption."

What is the "face-to-face teaching exemption"?

The copyright law contains an exception which allows the lawful use of "home use only" videorecordings for public performance or display without the permission of the copyright owner. Section 110 (1) of the law appears to allow the classroom use of video programs that have not been cleared for public performance if, and only if, all of the conditions set forth by the law are met.

Notwithstanding the provisions of section 106, the following is not an infringement of copyright: (1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;...

(Title 17, U.S.C., Copyrights, Section 110 (1), Limitations on exclusive rights: Exemption of certain performances and displays)

Does the face-to-face teaching exemption apply to distance education?

No, the Technology, Education and Copyright Harmonization (TEACH) Act provides a more limited right to use copyrighted material in distance education by accredited nonprofit institutions providing certain conditions have been met. The law permits the performance of nondramatic literary and musical works and "reasonable and limited portions" of dramatic and audiovisual works "in an amount comparable to that which is typically displayed in the course of a live session." Educational materials marketed as "mediated instructional activities transmitted via digital network" may not be used.

In order to take advantage of these exemptions there are many requirements including: 1) Access must be limited to enrolled students within class sessions; 2) Technological protection measures must be put in place to prevent recipients from further distributing the works; and 3) Institutions must institute copyright policies, provide information on copyright compliance, and provide "notice to students that materials used in connection with the course may be subject to copyright protection."

The TEACH Act was enacted in October, 2002, and is a completely revised version of Section 110(2) of the U.S. Copyright Act.

It should be noted that the TEACH Act does not restrict the law of fair use, which may allow performances beyond those allowed by the TEACH Act.

What are some of the ways to find out if a videorecording has public performance rights or home use rights?

• Determine what rights are attached to a videorecording at the time it is purchased or acquired, and document that information. Know that the videorecording is a legal copy and know if the source of purchase or acquisition has the right to grant or convey public performance rights or not.
  
  
• Look for rights information on the video label, container, or on the screen.
  

Videorecordings with "home use only" rights usually, but not always, have statements indicating home use. Do not assume that a videorecording has public performance rights if "home use" or wording to that effect is not indicated, however.

Videorecordings with public performance rights rarely have that information specifically stated.

• Contact the copyright owner or the owner's authorized representative for rights information.
  
  
• If the rights cannot be determined, it is advisable to assume that a videorecording does not have public performance rights.

When might schools or libraries consider obtaining licensing in order to use "home use only" videorecordings for public performance?

When they want to show videorecordings in any situation outside of the definition of "home-use-only" or, in the case of schools, outside of the definition of the "face-to-face teaching exemption." For example, a public library would need public performance rights to show a videorecording to staff in an in-service workshop, to children during story hour, or to a community group meeting. A school would need public performance rights for a videorecording to be shown for entertainment in place of recess on a rainy day, or for after-school programs, or as a reward.

How can schools and libraries obtain a license to use home use videorecordings for public performance?

• One way is to contact the copyright holder directly, or the distributor if the distributor has the authority from the copyright owner to grant licenses, to purchase public performance rights or to request permission for a particular public performance use.
  
  
• Another way, particularly in the case of feature films, is to contact the licensing service representing the particular studio or title. Services vary in the types of licensing offered and the scope of materials represented.

Some of these services are:

Criterion Pictures USA, Inc.

8238-40 Lehigh

Morton Grove, IL 60053-2615

1-800-890-9494 or 1-847-470-8164

Fax: 1-847-470-8194

http://www.criterionpicusa.com

Kino International Corp.

333 W. 39^th Street, Ste. 503

New York, N.Y. 10018

1-800-562-3330 or 1-212-629-6880

Fax: 1-212-714-0871

Email: contact@kino.com

http://www.kino.com

Milestone Film & Video

P.O. Box 128

Harrington Park, NJ 07640-0128

1-800-603-1104

Fax: 1-201-767-3035

Email: milefilms@gmail.com

http://www.milestonefilms.com

Motion Picture Licensing Corporation (MPLC)

5455 Centinela Avenue

Los Angeles, CA 90066-6970

1-800-462-8855

Fax 1-310-822-4440

Email: info@mplc.com

http://www.mplc.com

Movie Licensing USA

A division of Swank Motion Pictures, Inc.

Schools: 10795 Watson Road

St. Louis, MO 63127-1012

Schools: 1-877-321-1300

Libraries: 1-888-267-2658

Other organizations: 1-800-876-5577

Fax:1-877-876-9873 (Schools & Libraries)

Email: mail@movlic.com or mail@swank.com

http://www.swank.com

What are some of the questions to ask when contacting a licensing service?

When licensing a program, it is necessary to understand how the licensing agency operates and what the specific conditions and limitations of the license agreement are. Some of the questions to ask might include:

• Which motion picture studios and distributors are represented by the licensing company?
  
  
• Which home video producers and distributors are represented by the licensing company?
  
  
• Are all of the titles from the studio, producer, or distributor represented by the licensing company?
  
  
• What titles, specifically, are excluded from representation?
  
  
• Is the particular title wanted for public performance available for licensing?
  
  
• Does the licensing company offer blanket or umbrella licenses, or does it offer licenses only for specific showings of specific titles, or does it offer both types of licensing?
  
  
• What exactly does the license allow?
  
  
• What does the license not allow?
  
  
• Does the blanket or umbrella license extend to uses outside of the building?
  
  
• Does the license restrict advertising of showings? What types of announcements and advertisements are allowed and not allowed?
  
  
• If a license is wanted for a specific public performance, may one's own copy of the video be used, or must a copy supplied by the licensing company be used?
  
  
• Does the licensing company license film or video (be specific about format) or both?
  
  
• How are licenses priced?
  
  
• What is the price for the specific situation or need?

This information sheet should be viewed as a resource and not be considered legal advice. A school or library may wish to consult an attorney for advice concerning specific copyright questions.

For questions about this information, contact Kay M. Ihlenfeldt (608) 266-3108

Last updated on 4/21/2010 10:50:46 AM