Whilst it is useful ... to consider the contrast between a performance in public and one in private,
it would be wrong to convert the test in the Act from the question: Is the performance in public?
to the question: Is the performance in private? It is not merely that the notion of ’in private’ is as
difficult as the notion of ’in public’; more important is the impropriety of the implicit change in
the relevant language. The answers to the two questions do not necessarily lead to the same
conclusions. The statutory right to perform in public may cover situations that might be thought
to be performances in private. ...Thus, in the present case, the court is to consider the character of the audience, and ask whether
that audience may fairly be regarded as part of the monopoly of the owner of the copyright. The
relevant character of the audience is not its character of an individual or individuals in a private
or domestic situation, but in its character as a guest or guests of the motel. In that latter character
the guest pays for his accommodation, and the benefits (in-house movies) that go with it. In a
real sense he is paying the proprietor of the motel for presentation to him in the privacy of his
room of an in--house movie. He is, in this character, a member of the copyright owner’s public.Performance ’in public’ means performance to the public of the owner of the copyright, and
’public’ includes a portion of the public, however small. ...NOTES:- A similar view was taken in Columbia Pictures Industries, Inc. v. Aveco
Inc., 800 F.2d 59 (U.S.: Court of Appeals, 3rdCir., 1986), where the defendant
provided individual viewing rooms for a charge, where the public could bring
their own movies to watch or could rent movies from the defendant to watch.
The Court decided that the defendant was liable for authorizing public
performances:
The Copyright Act speaks of performances at a place open to the public. It does not
require that the public place be actually crowded with people. A telephone booth, a
taxi cab, and even a pay toilet are commonly regarded as “open to the public,” even
though they are usually occupied only by one party at a time. [The defendant] was
willing to make a viewing room and video cassette available to any member of the
public with the inclination to avail himself of this service.- By contrast, in Columbia Pictures Industries, Inc. v. Professional Real
Estate Investors Inc., 866 F.2d 278 (U.S.: Court of Appeals, 9thCir. 1989),
the court concluded that a hotel was not liable for a performance in public when
it supplied movie videodisks for guests to play in their own rooms:
[Hotel] La Mancha’s operation ... is the providing of living accommodations and
general hotel services, which may incidentally include the rental of videodiscs to
interested guests for viewing in guest rooms. While the hotel may indeed be “open
to the public,” a guest’s hotel room, once rented, is not. ... La Mancha guests do not
view the videodiscs in hotel meeting rooms used for large gatherings. The movies are
viewed exclusively in guest rooms, places where individuals enjoy a substantial
degree of privacy, not unlike their own homes.100