Copyright/Video at Troop Party
Bob Nieland (rgn@MCS.NET)
Fri, 13 Dec 1996 15:24:43 -0600
Tim Goncharoff wrote:
>Hopefully, I won't be starting another major thread here, but...
>
>Some of you will remember the long, acrimonious discussion about the use
>of copyrighted music for scouting programs. I'm afraid we're facing the
>identical issue here. If you rent a movie or record one off of your tv,
>and then show it to a group of scouts, you are violating the copyright.
>Sure, it's pretty common, and enforcement is tough, but people have been
>caught and fined, and then of course, there's the issue of modeling
>law-abiding behavior.
>
>Movies you rent or tape can be shown only at home, to a small group of
>family and friends. They may not be advertised or used as part of any
>program where payment is made (such as the fees and dues that scouts
>pay). If we want to use them, there are companies that rent films for
>that purpose, but the cost is typically in the hundreds of dollars. No
>exceptions are made for non-profits.
I would agree with Tim's conclusions, but for different reasons. The showing
of videos at a Troop meeting actually presents somewhat different copyright
issues than those involved with the performance of music at a summer camp.
If you recall the earlier discussion, ASCAP had been sending out notices to
summer camps objecting to the singing or other public performance of songs
at the camps. They were doing this to get around an exception in the
Copyright Act (section 110(4)), which allows free performances of
nondramatic literary or musical works in a noncommercial, nonprofit setting.
There are two alternative ways of meeting the "noncommercial" requirement.
One way is to charge no "admission" fee. ASCAP apparently felt that fees
charged to Scouts for attending summer camp constituted an indirect
admission charge. The other way to meet the noncommercial requirement is to
show that the net proceeds from admission fees (after deducting expenses)
are being used for educational, religious or charitable purposes and not for
private financial gain. However, the second method doesn't work if the
copyright owner sends written notice objecting to the performance ahead of
time. This is what ASCAP was doing.
To make a long story short, ASCAP caught a lot of flak for this in the
media, realized they were looking pretty stupid, and backed off.
This may sound like great news for Troops that want to show videos at
meetings or holiday parties, but . . . there's a catch. Audiovisual works,
such as videos, don't qualify for the "free performance" exemption. Its only
available for literary and musical works.
You could argue instead that there is no infringement in the video situation
because the performance doesn't take place in a "public" setting, but it's a
weak argument. A little background: The Copyright Act gives a copyright
owner six exclusive rights - a reproduction right, an adaptation right, a
distribution right, a public performance right, a public display right and a
new variant of the public performance right which is being called a
convergence right. The "public performance right" allows the copyright owner
to perform or authorize the performance of the work publicly. You infringe
the public performance right if you show a video publicly without the
copyright owner's permission. The fact that you pay a fee to the video
rental store doesn't give you permission to show it in a public setting.
A performance is considered public if it occurs in a setting where a
substantial number of persons outside a normal circle of friends and its
social acquaintances is gathered. This includes performances in semi-public
places, such as clubs (including private clubs), lodges, summer camps,
schools and factories. Although I'm not aware of any court cases that have
considered a Boy Scout troop setting, I would suspect that this would be
treated like a club or lodge and considered a public setting.
Cathy Carver, in an earlier posting, stated that, "Videos are shown in
schools all over the country, and this is considered as a private showing,
not public." Schools are allowed to show videos for educational purposes.
However, this is still considered a public performance. The reason it is
allowed is because there is a special "teaching activities" exemption in the
Copyright Act, again in section 110, not because it's a private showing. The
exemption is available only for "face-to-face teaching activities of a
non-profit educational institution, in a classroom or similar place devoted
to instruction." Again, a Boy Scout troop isn't going to qualify for this.
Disney in particular has been very aggressive in enforcing its copyrights.
In 1995, it went so far as to go after a daycare center that had painted an
unauthorized picture of Mickey Mouse.
So where does that leave us as Scout leaders? Not in a good position, quite
frankly. If we're going to set an example of following the law, the choices
are either to not show videos at Troop or Pack meetings, or make
arrangements with a non-theatrical distributor, which Tim suggests is a
pretty expensive solution.
A better approach might be to see if the National BSA organization could
arrange for a blanket license arrangement with the Motion Picture
Association of America. After Disney received adverse publicity from the
daycare situation, the Hollywood studios, acting through the MPA, agreed to
waive movie licensing fees for daycare centers with fewer than 100 children.
This allows about 186,000 daycare centers to show movies for a yearly
license fee of $1.
If anyone has thoughts on how we might initiate this, I'd be glad to help
out. By the way, in case anyone is curious about this, I have no connection
with the studios or other parts of the entertainment industry.
Bob Nieland
Committee Chairman, Cub Scout Pack 101
Naperville, Illinois
http://www.pack101.org
mailto:rgn@mcs.net
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