TVEyes and its defense of fair use. The factual record therefore needed to be developed further
before the court could decide whether those uses constituted fair use.^367
B. The Right of Public Performance
Section 106 (4) of the copyright statute grants the owner of copyright in a work the
exclusive right to perform the work publicly. The right applies to literary, musical, dramatic, and
choreographic works, pantomimes, motion pictures and other audiovisual works. It does not
apply to pictorial, graphic, sculptural, and architectural works. It also does not apply to sound
recordings, other than with respect to public performances by digital transmission,^368 although a
public performance of a sound recording may infringe the right of public performance of the
underlying musical work that is recorded in the sound recording.
Section 101 provides that to perform a work “publicly” means:(1) 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; or(2) to transmit or otherwise communicate a performance ... 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.Because this definition encompasses transmissions of works, it clearly implicates online
activity. However, to fall within the public performance right, there must be a transmission of a
performance of the work, not merely of the work itself. Thus, for example, transmission of the
digitally encoded sounds of a musical work to the hard disk of a recipient computer may infringe
the right of distribution of the work (as well as the reproduction right), but not the public
performance right, because the work is not being performed^369 at the recipient’s end.
(^367) Id. at *42-43.
(^368) The Digital Performance Right in Sound Recordings Act of 1995 created a limited public digital performance
right in sound recordings as of February 1, 1996. Pub. L. No. 104-39, 109 Stat. 336 (codified at 17 U.S.C. §§
106, 114, 115). Certain transmissions of performances are exempt. The exemptions do not apply, however, to
an “interactive” service, which the copyright statute defines as a service “one that enables a member of the
public to receive a transmission of a program specially created for the recipient, or on request, a transmission of
a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the
recipient.” 17 U.S.C. §§ 114(d)(1), 114(j)(7).
(^369) The copyright statute provides that “[t]o ‘perform’ a work means to recite, render, play, dance, or act it, either
directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to
show its images in any sequence or to make the sounds accompanying it audible.” 17 U.S.C. § 101.