copyright demo

Ok.... so this won't be interesting to anyone reading this, but I'm going to be doing some copyright hypos over the next couple of posts to prep for my exam. Here goes.

I was sitting in Victorian's Midnight Cafe eating breakfast yesterday morning and I noticed somthing. Well, actually, I noticed a couple of things. First, my waitress was really good looking. She sat down with me to take my order and i was a bit flabbergasted at first. I almost had to say "can you please stand up because I can't concentrate on the menu and form a sentence to order because I can't take my eyes off of you. But I didn't. Anyway, my eggs and toast were pretty good. The eggs were nice and fluffy, as if they were very fresh, and the yolk was perfectly runny...like i like it. Anyway, I also noticed that they were playing the broadcast feed from a satellite tv thing of a music channel. Apparently the crappy 70s rock station. Anyway, it got me to thinking, was this copyright infringement? The first questions in a copyright infirngement case is whether there isa valid copuyright at all. In this case, it is very clear that the songs I heard would qualify as having a copyright. There are 2 requirements for a copyright: fixation and originality. Fixation is not a problem. These were all songs that were written down, cut on wax, and even published to the people. (since these songs may have been out before 1976, there could be public domain issues associated with copyright notice, but i'm going to ignore that right now). Anyway, fixation... not a problem. Second, it would need originality. Under the Feist holding, to have originality can be found by having independent creation and some small amount of creativity. Again, this is pretty clear here. The Songs I heard were probably not copied from somewhere else (tho, i don't know that, and it could be contested) and they are at least a little bit creative. Probably much more so. So, copyright seems to exist.

The second initial issue could be copyright ownership. Here, I don't have enough facts. It is likely that these songs copyrights are owned by the record studio. But I don't know that. Either way, under 201, copyright ownership first vests in th author of the work. This could either be the composer or the studio if this were a work made for hire situation. Again,I don't know, so I'll assume that the studio owns the copyright. For simplicity sake, I will also assume that the studio owns the sound recording rights (because with songs there are rights to the musical work and to the sound recording).

Ok. so we have a valid copyright and it is owned by the studio. Now, under 106(4), the copyright owner has the exclusive rightto public performance of his/her work. Here the playing of the songs is a public performance. Therefore, without some licensing agreement (and I doubt that Victorian's has one--like from ASCAP), they would be infringing the copyright owners right to public performance. However, they may be exempted by 110(5). While this may be a little unclear in some areas, it still appears to be an easy application of this exemption. Under 110(5)(A), the communication of a transmission which is received by a single apparatus of the kind commonly usd in pivate homes is exempt unless there is a direct change made to see or hear the transmission or the transmission thus received is further transmitted to the public. Here, there was no retransmission and no charge made for the performance. Also, this was being played out of a simple, large screen tv-the kind you could easily buy at Best Buy or some retail electronics store. I think these are pretty common today. So, I think they would be covered under 110(5)(a)
If they were not covered under 110(5)(a), they may still be exempt under 110(5)(b). Even if A does not apply, this seems to be an easy case for B. This provides an exemption for eating or drinking establishments to play a nondramatic musical work intended to be receivd by the general public or an audiovisual transmission by a cable system or satellite carrier if the eating/drinking establishment is less than 3750 sq/feet or if larger, then it only has no more than 6 speakers and no more than 4 in 1 room. Here, victorians seemed to be smaller than 2000 sq/feet. However, even if it isn't, there were only 2 speakers playing this: those coming from the tv. Therefore, it would fall under this exemption.

So, it seems that victorians is in the clear. However, I'm a little bit unclear about the digitial performance rights and if the aiken and 110(b) exemption count here. I'm going to find out tho.