The exclusive right granted in section 106(4) for a musical work is the right "to
perform the copyrighted work publically."
Under the definitions in section 101 of the Act, "To
perform or
display a work “
publicly” means ... to
perform ...
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."
I've always read these provisions to mean that a performance at a wedding or private party is not a public performance subject to the exclusive rights granted by the Act, but I've never specfically researched whether those provisions have been litigated in that context. I'd be curious to get @Music Attorney's take on that question.
The answer is that I don’t know whether those events have been litigated as to a public performance right, but my understanding as to weddings is the same as yours. It’s very often the case with legislation that it’s simply impossible to draft every possible exception to a rule. In those instances, Congress uses more general language that is meant to convey some specificity as well as the “spirit of the law.” From there, litigation ensues to determine whether the facts and circumstances of any particular situation fall inside or outside the intent of the Congressional language. In that regard, my general understanding is that birthday parties, anniversaries, and other events that are invitation only and not open to the public and not for profit would be considered private. Even if a PRO could make the argument that weddings, anniversaries, etc. were public performances, would they? Not particularly good optics, imo.
Similarly, I don’t see PROs going up to a traditional tailgate party outside the stadium on game day to extract a fee. On the other hand, if some event organizer put together a “for profit” tailgate party where admission was charged, then a PRO might very well go knocking on that door. Now change the “for profit” tailgate party to one that’s using the money for school needs. I don’t know on that one.
Again, there would be no way to know the outcome because the facts and circumstances of each case are different and nothing definitive can be ascertained until the people in the jury box or the person in the black robe makes a decision. However, that decision would only apply to those facts and circumstances. If you start over with a slightly different tailgate party event, then you have to start the whole process all over again.
Does that help your curiosity?
As a side note, and with apologies in advance for hijacking your post, it got me thinking about something in connection with another post in this thread.
A bit of background. Some clown in another post asked me a series of questions and because I gave him a “significant response” to one and ignored others (which I didn’t do – I simply said the answers were readily available online) it set off his “BS detector”. My failure to respond apparently constituted some kind of confirmation of something. And the fact that I specifically didn’t answer one question about massive bias must have been because I wouldn’t be able to answer the question without making ASCAP/BMI look bad.
One question I suggested he research himself was: “So how many of these performing rights organisations does a bar need to pay off to be allowed to have music performed in their venue?”. Following my own advice, I Googled “How many performing rights organizations does a bar need to pay to license music” and one of the first referenced links said this: “In a perfect world, you’d pay one PRO. But music licensing is…complicated (that’s why a chat with your lawyer is important). The major PROs are BMI, SESAC, GMR, and ASCAP. Each PRO represents different artists. Some bars pay all 4 PROs for music licensing, others opt to pay a couple. Each PRO has an online database so you can see which artists are represented.”
Other than the reference to artists, it seemed like a pretty good answer, but what do I know. And now on to the reason for the hijack and why your post inspired it.
Another question from the poster was “Or is the law as currently set up massively biased towards ASCAP/BMI?” Apart from the fact that I wasn’t clear on the specific law or laws he was referring to and I wasn’t clear on what he meant by massively biased towards ASCAP/BMI, it didn’t seem like a particularly constructive use of my time. Hiding is so much easier and enjoyable and gives the other side a sense of victory.
But then you had to go and say this:
"The exclusive right granted in section 106(4) for a musical work is the right "to perform the copyrighted work publically." Under the definitions in section 101 of the Act, "To Perform or display a work “publicly” means ... to perform ... 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."
That info made me wonder whether potential massive bias towards the PROs could be found in that law. It’s a very simple, but powerful proposition: songwriters (or companies they designate like ASCAP) have the exclusive right to decide whether permission is granted to perform musical compositions publicly and under what terms. Assuming there is agreement that creators should have this exclusive right, then creators get to do whatever they want with their songs in terms of public performances, subject to whatever limitations may exist on that exclusive right (e.g., fair use). That would include having the right to assign or license some or all of their rights to someone else. One of those assignable rights would include the right to have a third party like ASCAP or BMI act as your agent in terms of the collection, licensing, enforcement, and pricing, of the public performance right.
Clearly, the US Congress must have given songwriters and publishers all that power based on some serious backroom deals and political hijinks. Surely, they couldn’t have just intended something as simple as a creator being able to control the public performance of their musical work. And there’s no way they were just fulfilling their constitutionally mandated duty “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." Nope, it had to be something more nefarious.
And then I found it. It was in 1897 when the US Congress extended the exclusive right of public performance to musical works for the first time. Although ASCAP would not be founded until nearly 20 years later, they must have known the primitive environment of those times would make collection, licensing, enforcement, etc. extremely difficult and that some enterprising individual (e.g., Victor August Herbert) would come along and use this massively biased law to their advantage and be first to market with a product and service that helped mitigate some of the difficulties faced by songwriters and publishers in that environment.
As if that wasn't favorable enough to ASCAP (and BMI which didn’t come along until 1939), the Supreme Court of the United States decided to get involved and provide further bias and favoritism on a massive scale. The Supreme Court was presented with 2 cases which they combined because they both presented the same question: whether the performance of a copyrighted musical composition in a restaurant or hotel without charge for admission to hear it infringes the exclusive right of the owner of the copyright to perform the work publicly for profit. And here is what the Supremes concluded:
“If the rights under the copyright are infringed only by a performance where money is taken at the door they are very imperfectly protected. Performances not different in kind from those of the defendants could be given that might compete with and even destroy the success of the monopoly that the law intends the plaintiffs to have. It is enough to say that there is no need to construe the statute so narrowly. The defendants' performances are not eleemosynary. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order, is not important. It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere. The object is a repast in surroundings that to people having limited powers of conversation or disliking the rival noise give a luxurious pleasure not to be had from eating a silent meal. If music did not pay it would be given up. If it pays it pays out of the public's pocket. Whether it pays or not the purpose of employing it is profit and that is enough.”
So how do we really know the Supreme Court was biased and wanted to set up the law in favor of ASCAP (and BMI which did not exist) so ASCAP (and eventually BMI) could set up service models for songwriters? It’s simple. The Supreme Court frequently decides in favor or against a law on a 5-4 basis based on ideological lines. However, in this case, the court was unanimous and that almost never happens. Surely there was influence of some kind to secure a 9-0 vote in favor of songwriters and publishers.
As a side note, the language from the Court’s opinion quoted above was delivered in 1916 by Justice Oliver Wendell Holmes, who is widely regarded as one of the towering legal figures in US history, but, unfortunately, not someone who was without bias or favor.
