Cities Should Tread Carefully on Copyright Issues

Licensing for music and movies used at city events can be tricky. Shontavia Johnson, associate vice president of academic partnerships for Clemson University, and founder of Jackson Johnson, LLC, explains the complexities of copyright law and examines several questions cities and towns need to consider to ensure compliance with the law.

In the United States, copyright law automatically protects creations that meet certain requirements. The law requires that creations meet the legal definitions of (1) originality, (2) work of authorship and (3) fixation.

Each requirement is further defined by the law. Current copyright law, often referred to as the Copyright Act of 1976 or just the Copyright Act, can be found in Title 17 of the United States Code.

First, for something to be considered original, it must be independently created (not copied) and have a minimal degree of creativity. The bar for creativity is very low.

Second, the definition of a "work of authorship" is outlined in the Copyright Act. The phrase, "work of authorship," merely refers to items protected by copyright law. This is defined to include: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. Other works such as music, books and movies fall within this definition. This list, however, is not comprehensive. Creators can argue that other things should be placed on the list. For example, computer software and websites don't appear on the list, but they are copyrightable.

Third, to be copyrightable, a work must be fixed. Essentially, this means that people have to be able to see, touch, hear or perceive the work in some way for more than a brief moment.

Creations automatically receive copyright protection under the law once they meet all three requirements. Registration with the U.S. Copyright Office is not required, though there are some significant benefits to doing so.

When it comes to protecting copyrighted works, copyright owners can sue for infringement if they believe their rights have been violated. A successful lawsuit would typically result in injunctive relief requiring that the infringement cease and/or awarding money damages.

It is worth noting that when it comes to suing state and federal governments for copyright infringement, sovereign immunity can become an issue. Sovereign immunity means that certain entities can be immune from certain lawsuits. As it relates to copyright law, the federal government can typically be sued for copyright infringement, while state governments generally cannot (though there are exceptions). However, sovereign immunity does not apply to municipalities or counties. Local governments can be sued for copyright infringement, even when acting on the state's behalf. 

Three questions that cities and towns should consider

If a city wants to play a recording of Christmas carols or recorded Halloween music at a community-wide, free, city-sponsored gathering for the public, does the city have to seek any legal permissions to do so?

It would seem that the city does need to seek permission from the copyright owner in this instance. This is usually done by purchasing a license. The law requires that others purchase a license for the public performance of a copyrighted song at events.

A public performance includes activities or displays in a place open to the public or at any place where a substantial number of people outside of a normal circle of a family and its social acquaintances is gathered. Therefore, before a city uses a copyrighted song at a public event, it would likely need to obtain a public performance license. These can typically be acquired by one of three agencies: American Society of Composers, Authors and Publishers; Broadcast Music, Inc.; or Society of European Stage Authors and Composers.

There are some exceptions to this general answer. First, some recordings, particularly certain holiday songs, are no longer protected by copyright law because the time limit for protection has expired. This is commonly known as being in the "public domain" because the former copyright holder no longer owns rights in the work, and the public can use the work how they see fit. The Public Domain Information Project, for example, keeps a list of holiday songs in the public domain.

Second, copyright protection is limited by fair use, which includes educational uses, criticism and news reporting. Fair use, however, is highly subjective and can be difficult to interpret without help from qualified legal counsel.

Third, there are a number of exceptions outlined in Section 110 of the Copyright Act, but none of them seem to apply to the Christmas carol/Halloween music scenarios. 

If the city hires a band, which plays a cover of a popular song, is it legal for someone at the city or a resident in the audience to live stream the performance on Facebook Live?

While many people are streaming on social media, it is probably copyright infringement and thus illegal. If a resident records, reproduces, performs or broadcasts another person's copyrighted work, it could be considered violation of copyright law. This would include music playing in a live streamed video, either as the featured focus or in the background. However, the city can ask for a public performance license that includes the right to live stream the performance.

In addition to copyright law, South Carolina's right of publicity law might come into play here. The South Carolina Supreme Court has held that "the right to control the use of one's identity is a property right that is transferable, assignable, and survives the death of the named individual." Gignilliat v. Gignilliat, Savitz & Bettis, L.L.P., 684 S.E.2d 756 (SC 2009). If someone inappropriately uses a person's name, likeness or identity for his own benefit, he could be subject to a lawsuit on these grounds. The Facebook Live video could arguably fall under this legal umbrella because the band members' faces would appear in the video.

As a practical matter, however, the repercussions of this kind of activity depend solely on the reaction of the copyright owner and/or band members. Some artists may want the publicity and attention that come along with having their song shared on social media many times. Others do not like these kinds of uses and actively seek to eliminate them. 

If a city bought a license with the American Society of Composers, Authors and Publishers to play a movie in the park for residents to enjoy for free, does the city need to purchase a license from other companies, too?

There are basically two main film licensing companies — Swank Motion Pictures and Criterion Pictures (ASCAP, BMI and SESAC focus on music). There are others, including Kino International Corporation, Milestone Films and Video, Motion Picture Licensing Corporation and New Yorker Films. These film licensing companies do not represent all of the same film studios, so cities may have to contact multiple companies to determine whether they can get a license to show a certain movie in the park.