exclusive right to display the work publicly.^531 Section 101 defines the meaning of “to display a
work publicly” in virtually identical terms as the definition of “to perform a work publicly.”
Thus, a public display can be accomplished by a transmission of a display of the work to
members of the public capable of receiving the display in the same place or separate places and
at the same time or at different times.
The WIPO Copyright Treaty does not contain a right of public display per se. However,
the right of public display is arguably subsumed under the right of communication to the public
in the WIPO Copyright Treaty.
- The Frena, Marobie-FL, Hardenburgh and Webbworld Cases
In Playboy Enterprises, Inc. v. Frena,^532 the court held that the making of photographs
available on a BBS was a “public” display, even though the display was limited to subscribers,
and subscribers viewed the photographs only upon downloading the photographs from the BBS
on demand. Thus, making material available through the Internet even to only a small and select
audience may still constitute a “public” display. The point at which a selected audience becomes
so small that a display to such audience can no longer be considered a “public” display is
unclear. The Playboy court seemed to define an audience as “public” if it contains “a substantial
number of persons outside of a normal circle of family and its social acquaintances.”^533
Similarly, in Marobie-FL, Inc. v. National Association of Fire Equipment Distributors,^534
the administrator of the Web page of the defendant, National Association of Fire Equipment
Distributors (NAFED), placed certain files on NAFED’s Web page containing three volumes of
copyrighted clip art of the plaintiff. The court ruled that the placement of the files containing the
clip art on the Web page constituted a direct violation of both the plaintiff’s distribution right and
public display right. The court concluded that the mere making available of the files for
downloading was sufficient for liability, because “once the files were uploaded [onto the Web
server], they were available for downloading by Internet users and ... the [OSP] server
transmitted the files to some Internet users when requested.”^535 The court, citing the Netcom
case, refused to hold the OSP supplying Internet service to NAFED directly or vicariously liable,
although the court noted that the OSP might be liable for contributory infringement, depending
upon whether the OSP knew that any material on NAFED’s Web page was copyrighted, when it
learned of that fact, and the degree to which the OSP monitored, controlled, or had the ability to
monitor or control the contents of NAFED’s Web page.^536
(^531) The right of public display does not apply to sound recordings, architectural works, and audiovisual works
(except for display of individual images of an audiovisual work).
(^532) 839 F. Supp. 1552 (M.D. Fla. 1993).
(^533) Id. at 1557.
(^534) 45 U.S.P.Q.2d 1236 (N.D. Ill. 1997).
(^535) Id. at 1241.
(^536) Id. at 1245.