Section 10.8

This text is excerpted from a memo originating from the Office of the President dated August 29, 1991.

RE: The Attached Letter on Copyright/Motion Pictures

Please bring this letter from Sargoy, Stein, Rosen & Shapiro to the attention of individuals and/or offices in your vice presidential areas which show or transmit movies on a regular or occasional basis.

As I understand it, the expressed licensing/copyright concerns are not over classroom showings, but for all other group showings at the University. Such showings ("performance" as the letter calls them) are supposed to be licensed by the owner of the copyright.

In practice I believe this letter on behalf of several motion picture companies is aimed at anyone within a university community who might rent a movie tape at the local video store and then show it, with or without charge, to a group of people outside of his/her "home." Movies secured from reputable film rental companies will most likely have built-in licensing arrangements.

The text of the letter is as follows:

Sargoy, Stein, Rosen & Shapiro represents the following motion picture production and distribution companies:

Columbia Pictures Industries, Inc.
MGM-Pathe Communications Co.
Orion Pictures Corporation
Paramount Pictures Corporation
Tri-Star Pictures, Inc.
Twentieth Century Fox Film Corporation
Universal City Studios, Inc.
The Walt Disney Company
Warner Bros. Inc.

It has come to our attention that certain colleges and universities throughout the United States may be conducting unauthorized public performances which might expose such institutions and their employees to liability for copyright infringement. We assume that in most circumstances such infringing activities are unintentional and arise from a lack of knowledge of the requirements of the Copyright Act. Therefore, I would like to take this opportunity to review certain provisions of the Copyright Act which relate to the performance of motion pictures on college campuses.

On November 15, 1990, President George Bush signed into law the Copyright Remedy Clarification Act. This legislation clarified a conflict among court decisions on the issue of whether state institutions are subject to suit for copyright infringement under the federal Copyright Act, Title 17 United States Code. This conflict has now been resolved by the recent legislation. It provides:

§ 511. Liability of States, instrumentalities of States, and State officials for infringement of copyright.

1. In general. Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 119, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.
2. Remedies. In a suit described in subsection (2) for a violation described in that subsection, remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are available for such a violation in a suit against any public or private entity other than a State, instrumentality of a State, or officer or employee of a State acting in his or her official capacity. Such remedies include impounding and disposition of infringing articles under section 503, actual damages and profits and statutory damages under section 504, costs and attorney's fees under section 505, and the remedies provided in section 510.

One of the rights reserved to the copyright owner is the right "to perform the copyrighted work publicly." 17 U.S.C. §106 (4). This right remains with the copyright owner and is not transferred to the purchaser or lessee of a cassette. Section 101 contains the following definition of "publicly":

To perform or display a work 'publicly' means--

(1) 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;

(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.

Congress, as both the House and Senate Reports on the Copyright Act demonstrate, clearly intended that even performances which are not open to the general public and are limited to particular groups or categories of persons fall within the definition of "to perform . . . a work publicly." For example, H.R. Rep. No. 94-1476, 94th Cong. 2d Sess. (1976) at p. 64 states that performances in "places such as clubs, lodges, factories, summer camps and schools are public performances subject to copyright control." (emphasis supplied.)

Despite these broad performance rights, the Copyright Act recognized that certain educational performances should not be subject to a copyright owner's control.

Section 110(1) provides an exemption for certain classroom performances:

Notwithstanding the provisions of § 106, the following are not infringements 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;

By creating this exemption the Copyright Act balances the need for educators to have access to copyrighted material with the copyright owner's right to control uses of his creative efforts.

Our clients are available, directly or through their authorized licensors, to license performances at colleges and universities. Each of our clients has authorized Films Incorporated, Chicago, Illinois [(314) 289-2102] and others to license performances of motion pictures at institutions such as yours.

If you have any questions regarding the contents of this letter, please do not hesitate to write this office.