MOVIE NIGHT AT THE CLUBHOUSE: Do We Need a License for That?
by Sotia M. Kyriacou
As the days grow longer and buds begin to bloom, we can sense that spring is fast approaching. The warmer seasons are to be celebrated, and what better way to do so than gathering with neighbors for an evening of good company, food, and plenty of entertainment?
This time of year, many associations do just that by holding social events to bring their communities together. Many times, associations wish to show fun, family- friendly movies at these events. As a result, a question many Board members and community managers have is whether the association must obtain a license to show a movie at these events. The short answer to this question is, in most cases, yes. Let’s dive into this a bit further.
On January 1, 1978, the federal Copyright Act of 1976 (“Act”) took effect. The law extended copyright protections to various works, among them “audiovisual works” and “motion pictures,” whose definitions include movies. Because the Act protects those types of copyrighted works, a public performance of a protected work without a license issued by the copyright holder is a copyright infringement. This raises the questions: (1) what constitutes a protected work; and (2) what constitutes a public performance?
With respect to the first question, numerous works are protected under the Act, among them movies, music, literary works, and computer programs. These works are protected by the Act if they meet the following conditions: they have not yet become a part of the public domain; and, there is no exception to the Act permitting their use without obtaining a license.
To summarize, when a work becomes part of the public domain, it is no longer covered by the protections of the Act. The calculation of when in time a work ceases to be protected by the Act and becomes part of the public domain requires a case-by-case examination. The significant factors in that analysis are the date the work was created and the applicability of various technical provisions of the Act relative to that date. For example, a work created by a sole author after January 1, 1978 will be protected by the Act for the duration of the author’s entire life plus an additional 70 years. Thereafter, it will lose its protections and become part of the public domain. For our purpose in this article, we will assume that the movie the association wishes to show has not yet become a part of the public domain (which is most often the case).
There are also various exceptions to the Act’s protections. For instance, under the “fair use” provisions of the Act, the use of a copyrighted work for purposes including “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not copyright infringement. 17 U.S.C. §107. In our situation, the association’s showing of a movie at a social event would not fall under the fair use exceptions of the Act, and could therefore constitute an infringement of the copyright.
We now turn to our second question – is the association’s showing of a movie at a social event a public performance? According to the Act, the showing of the movie is “public” if, among other things, it is shown at a place open to the public (such as a movie theater), or if it is shown at a place where a substantial number of people outside of a normal circle of a family and its social acquaintances are gathered. The association’s showing of a movie at a social event in its clubhouse or on open grassy common area in the subdivision would fall within the latter definition of a public performance. Because the association’s showing of a copyrighted movie at a social event is a public performance under the Act, showing the movie without a license from the copyright holder would therefore constitute copyright infringement. Accordingly, in nearly every instance, associations must obtain a license to lawfully show a movie at a social event or gathering.
In closing, although a situational analysis is necessary to determine whether an association must obtain a license to screen a movie at a social gathering, in most instances the Act requires a license. To avoid potential liability for copyright infringement, associations should always make sure that proper licensing is in place prior to screening any movies. Should licensing be needed, numerous services are available from which such licenses can be obtained, such as the Motion Picture Licensing Corporation.
So, get your license, sit back, relax, and enjoy the show!