Copyrights and Your Rights an ACUI webinar

Nov. 13, 2003

“PUBLIC PERFORMANCE” (from www.mpaa.org)

Unauthorized public performances refer to situations where an institution or commercial establishment shows a tape or film to its members or customers without receiving permission from the copyright owner. This includes "public performances" where an admission fee is charged as well as those that are simply offered as an additional service of the establishment.

"The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries..." Article I, Section 8, The United States Constitution

“FAIR USE” (from www.movlic.com)

In some instances, it is not required to obtain a Movie Copyright Compliance Site License when exhibiting copyrighted materials such as videocassettes or DVDs.

This "face-to-face teaching exemption" applies only IF: A teacher is in attendance and the showing takes place in a classroom setting and the movie is used as an essential part of the current curriculum being taught.

Examples of situations where a Movie Copyright Compliance Site License must be obtained are: public libraries, day-care facilities, and non-classroom entertainment movies being used at schools for after school activities. This legal requirement applies: Regardless of whether an admission fee is charged Whether the institution or organization is commercial or non-profit Whether a federal or state agency is involved

WHAT THE LAW SAYS (from www.copyright.org)

The Federal Copyright Act (Title 17 of the United Stated Code) governs how copyrighted materials,

http:www.copyright.orghttp:www.movlic.comhttp:www.mpaa.org

such as movies, may be used. Neither the rental nor the purchase of a videocassette carries with it the right to show the tape outside the home.

In some instances no license is required to view a videotape, such as inside the home by family or social acquaintances and in certain narrowly defined face-to-face teaching activities.

Taverns, restaurants, private clubs, prisons, lodges, factories, summer camps, public libraries, day-care facilities, parks and recreation departments, churches and non-classroom use at schools and universities are all examples of situations where a public performance license must be obtained. This legal requirement applies regardless of whether an admission fee is charged, whether the institution or organization is commercial or non-profit, or whether a federal or state agency is involved.

What Are "Public Performances"?

Suppose you invite a few personal friends over for dinner and a movie. You purchase or rent a copy of a movie from the local video store and view the film in your home that night. Have you violated the copyright law by illegally "publicly performing" the movie? Probably not.

But suppose you took the same videocassette and showed it at a club or bar you happen to manage. In this case you have infringed the copyright of the movie. Simply put, videocassettes obtained through a video store are not licensed for exhibition. Home video means just that: viewing of a movie at home by family or a close circle of friends.

Penalties for Copyright Infringement

"Willful" infringement for commercial or financial gain is a federal crime punishable as a misdemeanor, carrying a maximum sentence of up to one year in jail and/or a $100,000 fine. Even inadvertent infringers are subject to substantial civil damages, ranging from $500 to $20,000 for each illegal showing.

How to Obtain a Public Performance License

Obtaining a public performance license is relatively easy and usually requires no more than a phone call.

Fees are determined by such factors as the number of times a particular movie is going to be shown, how large the audience will be and so forth. While fees vary, they are generally inexpensive for smaller performances. Most licensing fees are based on a particular performance or set of performances for specified films.

The major firms that handle these licenses include:

Swank Motion Pictures, Inc. Criterion Pictures USA Motion Picture Licensing Corp.

Swank Motion Pictures (www.swank.com)

Walt Disney Studios Touchstone Pictures Hollywood Pictures Warner Bros. Paramount Pictures Columbia Pictures TriStar Pictures

800-876-5577

800-890-9494

800-338-3870

Criterion Pictures (USA) (www.criterionpicusa.com)

Twentieth Century Fox Film Corp Fox Searchlight New Line Cinema Fine Line Features Artisan Entertainment Trimark Pictures New Latin Pictures

Miramax Films Universal Studios DreamWorks Pictures Metro-Goldwyn-Mayer United Artists USA Films Lion’s Gate Films

Aviva International ABC Pictures AVCO / Embassy DDL Films Selznick International Troma Films The Films of John Waters (FileCard Inc.)

Motion Picture Licensing Corporation (www.mplc.com)

By law, as well as by intent, the pre-recorded videocassettes and DVDs ("Videos") which are available in stores throughout the United States are for home use only -- unless you have a license to show them elsewhere.

Rentals or purchases of Videos do not carry with them licenses for non-home showings. Before you can legally engage in non-home showings, you must have a separate license which specifically authorizes such use.

These simple, straightforward rules are embodied in the federal Copyright Act, as amended, Title 17 of the United States Code. Any institution, organization, company or individual wishing to engage in non-home showings of Videos should be aware of the Copyright Act's provisions governing the showing of Videos, which are highlighted below.

http:www.mplc.comhttp:www.criterionpicusa.comhttp:www.swank.com

The Copyright Act grants to the copyright owner the exclusive right, among others, "to perform the copyrighted work publicly." (Section 106)

The rental or purchase of a Video does not carry with it the right "to perform the copyrighted work publicly." (Section 202)

Videos may be shown without a license in the home to "a normal circle of family and its social acquaintances" (Section 101) because such showings are not "public."

Videos may also be shown without a license for non-profit educational purposes and in certain narrowly defined "face-to-face teaching activities" (Section 110.1) because the law makes a specific, limited exception for such showings. (Sections 106 and 110(1))

Other showings of Videos are illegal unless they have been authorized by license. Even "performances in 'semipublic' places such as clubs, lodges, factories, summer camps and schools are 'public performances' subject to copyright control." (Senate Report No. 94473, page 60; House Report No. 94-1476, page 64)

Institutions, organizations, companies or individuals wishing to engage in non-home showings of Videos must secure licenses to do so -- regardless of whether an admission or other fee is charged. This legal requirement applies equally to profit-making organizations and non-profit institutions (Senate Report No. 94-473, page 59; House Report No. 941476, page 62)

Showings of Videos without a license, when one is required, are infringements of copyright. If done "willfully and for purposes of commercial advantage or private financial gain," they are a federal crime and subject to a $150,000 penalty per exhibition(Section 506).

In addition, even innocent or inadvertent infringers are subject to substantial civil damages ($750 to $30,000 for each illegal showing) and other penalties. (Sections 502505)

FREQUENTLY ASKED QUESTIONS

Q. We own the Video, do we still need a license to view or show it in public? A. Yes. The location requires a license regardless of who owns the Video. While you may own the actual Video, you are only granted the right to view it in your home, not to perform it in public.

Q. We do not charge admission. Do we still need a license? A. Yes. Regardless of whether an admission fee is charged, a license is required.

Q. We are non-profit. Do we still need a license? A. Yes. The legal requirement to obtain a license applies equally to non-profit and for-profit organizations.

Q. We show Videos on our closed-circuit system. Do we need a license? A. Yes. The Copyright Act provides that closed-circuit transmissions are automatically deemed public performances.

Q. We are not open to the general public. Do we still need a license? A. Yes. Any location outside of the home is considered public for copyright purposes.

Q. We rent out our facility to other groups. Can we be liable for copyright infringement? A. Yes. The facility owner can be held vicariously liable or as a "contributory infringer."

OTHER RESOURCES

Motion Picture, TV, and Theatre Directory: www.mpe.net

Many HBO documentary titles are available for educational use through FILMS FOR THE HUMANITIES. Please visit their website at: www.films.com

Licensing Contacts

Company Service Provided Phone Web Site

AMP Agency Premiere film screenings 323-801-1350 www.ampagency.com

Criterion Pictures USA Non-theatrical film licensing 800-890-9494 www.criterionpicusa.com

First Run / Icarus Films Independent film licensing 718-488-8900 www.frif.com

Hogan Communications Premiere film screenings, Preview Theater 818-848-4876 www.hogancommunications.com

Kino International Independent film licensing 800-562-3330 www.kino.com

Les Films Criterion Non-theatrical film licensing (Canada) 800-565-1996 www.criterionpic.com

National Cinema Suppy Corp. Equipment and supplies 813-962-2772 www.ncsco.com

New Yorker Films Independent film licensing 212-645-4600 www.newyorkerfilms.com

Swank Motion Pictures Non-theatrical film licensing 800-876-5577 www.swank.com

Universal Studios Non-theatrical film licensing 818-777-1689 N/A

Villon Films Independent film licensing 604 879-6042 www.villonfilms.com

Wellspring Entertainment Independent film licensing 212-686-6777 www.wellspring.com/movies

Women Make Movies Independent film licensing 212-925-0606 www.wmm.com

Zeitgeist Films Independent film licensing 212-274-1989 www.zeitgeistfilms.com

Film Forum Independent distributor clearing house N/A www.filmforum.com/distributor.html#usa

http://www.ampagency.com/http://www.criterionpicusa.com/http://www.hogancommunications.com/http://www.kino.com/http://www.criterionpic.com/http://www.ncsco.com/http://www.newyorkerfilms.com/http://www.swank.com/http://www.wmm.com/http:www.films.comhttp:www.mpe.net

Hyperlinks to Relevant Websites Concerning Copyright Issues:

Intellectual Property Watchdog Website http://www.ipwatchdog.com/index.html

Salt Lake City Community College Copyright Laws in Higher Education www.slcc.edu/pln/copyright99.pdf

Groton Public Schools Copyright Resources on the Internet http://www.groton.k12.ct.us/mts/pt2a8.htm

Open Directory Project http://dmoz.org/Society/Issues/Intellectual_Property/Copyrights/

Dominion Web Links to Articles on Copyright Issues http://www.dominion-web.com/directory/Top/Society/Issues/Intellectual_Property/Copyrights

Copyright Website http://www.benedict.com/

www.haverford.edu/av/copyright/pubperform.html

-Gives quick explanations and definitions

-Lists 5 film distributors (most usually only list Swank)

-Highlights details of "teaching exception"

www.csbsju.edu/studentactivities/club_resources/face_to_face_exemption.htm

-This comes from a Student Activities site, and so has "programming-specific" examples

www.musicunited.org

-Very easy-to-follow about music

The recording of this webinar will be available to you after the end of the program.

ACUI will send an e-mail with instructions.

http://www.ipwatchdog.com/index.htmlhttp://www.slcc.edu/pln/copyright99.pdfhttp://www.groton.k12.ct.us/mts/pt2a8.htmhttp://dmoz.org/Society/Issues/Intellectual_Property/Copyrights/http://www.dominion-web.com/directory/Top/Society/Issues/Intellectual_Property/Copyrightshttp://www.benedict.com/www.haverford.edu/av/copyright/pubperform.htmlwww.csbsju.edu/studentactivities/club_resources/face_to_face_exemption.htmwww.musicunited.org

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Copyrights and

Your Rights

Association of College Unions International Nov. 13, 2003

John Ginsburg, J.D.

Director, University Center and Student Activities

Webster University

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Agenda

Meet the presenters Technical notes Introduction to the topic Comments from the presenters Discussion / Q&A Resources

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Robert Meitus, J.D.

Associate Bakers and Daniels,

Indianapolis

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Corbin Smyth

Assistant Director, Activities and Events

Indiana University– Bloomington

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Trent Barber

Associate Director for Student Activities and Campus Centers

Trinity College

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Introduction toIntroduction to

COPYRIGHT LAWCOPYRIGHT LAW ©© 2003 Baker & Daniels2003 Baker & Daniels

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OverviewOverview • Copyrights protect creative expression

(e.g., books, music, movies).

Intellectual PropertyIntellectual Property

• Trademarks protect commercialdesignations of source for goods orservices (e.g. MCDONALDS, NIKE).

• Rights of publicity protect an individual’sname, likeness and image used in acommercial manner (e.g., photo of JamesDean).

• Patents protect inventions and processes(formula for Prozac).

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BasicsBasics

• Copyright vests automatically when created and recorded/written.

• Exclusive rights include: • reproduction • distribution • adaptation • public performance • display

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When You DonWhen You Don’’t Need Permissiont Need Permission

• Fair use • Purpose of use • Nature of work • Amount of use • Market effect

• First sale doctrine

• Exemptions for classroom teaching • In the course of face-to-face teaching; • In a classroom or similar place; and • Directly related to curriculum. 10

IssuesIssues

• Playing a CD or having a coffeehouse in a union most likely requires licensing with ASCAP, BMI, SESAC.

• Public performance of copyrighted movies on a campus requires licensing with Swank, Criterion, or other licensor.

• More will be raised with your questions!

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Thank You!Thank You!

Feel free to contact:

Robert Meitus Baker & Daniels (317) 237-1155

robert.meitus@bakerd.com

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mailto:robert.meitus@bakerd.com

Corbin Smyth

Public Performance A performance that does not occur in your home. Unauthorized public performances refer to situations

where an institution or commercial establishment shows a tape or film to its members or customers without receiving permission from the copyright owner.

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Corbin Smyth

Fair Use In some instances, it is not required to obtain a Movie

Copyright Compliance Site License when exhibiting copyrighted materials such as videocassettes or DVDs.

Face-to-face teaching exemption Applies only if a teacher is in attendance AND the

showing takes place in a classroom setting AND the movie is used as an essential part of the current curriculum being taught.

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Corbin Smyth

What the law says Taverns, restaurants, private clubs, prisons, lodges,

factories, summer camps, public libraries, day-care facilities, parks and recreation departments, churches and non-classroom use at schools and universities are all examples of situations where a public performance license must be obtained.

This legal requirement applies regardless of whether an admission fee is charged, whether the institution or organization is commercial or non-profit, or whether a federal or state agency is involved.

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Corbin Smyth

Penalties for copyright infringement "Willful" infringement for commercial or financial gain is

a federal crime punishable as a misdemeanor, carrying a maximum sentence of up to one year in jail and/or a $100,000 fine.

Inadvertent infringers are subject to substantial civil damages, ranging from $500 to $20,000 for each illegal showing.

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Corbin Smyth

Swank Motion Pictures, Inc. Walt Disney Studios Miramax Films

Touchstone Pictures Universal Studios

Hollywood Pictures DreamWorks Pictures

Warner Bros. Metro-Goldwyn-Mayer

Paramount Pictures United Artists

Columbia Pictures USA Films

TriStar Pictures Lion’s Gate Films

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Corbin Smyth

Criterion Pictures (USA) Twentieth Century

Fox Film Corp Fox Searchlight New Line Cinema Fine Line Features Artisan Entertainment Trimark Pictures New Latin Pictures

Aviva International ABC Pictures AVCO / Embassy DDL Films Selznick International Troma Films The Films of John

Waters (FileCard Inc.)

•Criterion Pictures (Canada) 18

Corbin Smyth Licensing Contacts

AMP Agency, Premiere film screenings Criterion Pictures USA, Non-theatrical film licensing First Run / Icarus Films, Independent film licensing Hogan Communications, Premiere film screenings Kino International, Independent film licensing Les Films Criterion, Non-theatrical film licensing (Canada) National Cinema Suppy Corp., Equipment and supplies New Yorker Films, Independent film licensing Swank Motion Pictures, Non-theatrical film licensing Universal Studios, Non-theatrical film licensing Villon Films, Independent film licensing Wellspring Entertainment, Independent film licensing Women Make Movies, Independent film licensing Zeitgeist Films, Independent film licensing Film Forum, Independent distributor clearing house 19

Trent Barber

End User License Agreements (EULA) Commercial (pay before you try) Shareware (try it out, purchase a license if you keep) Freeware (no cost to use, still copyrighted) Open Source Free software Public domain (uncommon)

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Trent Barber

Licenses Campus agreements Departmental agreements Individual licenses

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Trent Barber

Console-based games Playstation, X-BOX, etc. Same license agreements apply There is no central clearinghouse for licenses

Gamerooms This application is generally considered a “public

performance” and violates the EULA

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Trent Barber Relevant links

Intellectual Property Watchdog Website http://www.ipwatchdog.com/index.html

Salt Lake City Community College Copyright Laws in Higher Education www.slcc.edu/pln/copyright99.pdf

Groton Public Schools Copyright Resources on the Internet http://www.groton.k12.ct.us/mts/pt2a8.htm

Open Directory Project http://dmoz.org/Society/Issues/Intellectual_Property/Copyrights/

Dominion Web Links to Articles on Copyright Issues http://www.dominion-web.com/directory/Top/Society/Issues/Intellectual_Property/Copyrights

Copyright Website http://www.benedict.com

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http:http://www.benedict.comhttp://www.dominion-web.com/directory/Top/Society/Issues/Intellectual_Property/Copyrightshttp://dmoz.org/Society/Issues/Intellectual_Property/Copyrightshttp://www.groton.k12.ct.us/mts/pt2a8.htmwww.slcc.edu/pln/copyright99.pdfhttp://www.ipwatchdog.com/index.html

Discussion and Q&A

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Resources

Webinar recording Further reading and other resources

handout (e-mailed at conclusion of program)

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Did you like this webinar?

ACUI has another webinar on RISK MANAGEMENT available for viewing online. Contact ACUI at (812) 855-8550 for more details

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“FAIR USE” (from www.movlic.com)Swank Motion Pictures (www.swank.com)OTHER RESOURCES