Does our library incur any liability when a program presenter uses our facility and presents a program at our behest that includes music, either a previously-issued recording of music not original to the presenter, or a live performance of a piece of music composed by a person who is not the presenter? What about a presenter who just contracts to use the venue, without library sponsorship of the program? What about the capture of such a performance and our streaming it or recording it for later posting on our website or broadcasting it on our community television as a public service? If so, what is the best way to protect ourselves?
This is a huge question!
I say “huge” because it has about fifteen different answers, and many of them depend on the nature of the performer, the songs performed, and the way the audience entered the performance.
But I will limit this reply to 5 answers I think are most helpful to the average library:
Answer #1: Yes, a host institution can face liability for an on-site infringing performance by either itself, OR by a non-affiliated presenter. In a copyright case, everyone who contributed to the infringement is generally named as a defendant. So even if the library is simply the “innocent infringer” providing the venue, there is a risk it could be sued.
Answer #2: Yes, there are several things a library can do to protect itself! When it comes to a performance by a third party, the best option is a properly worded contract.
For any use of its facilities, the library should have a stock contract that provides for the following:
1) verification that the performer has all the licenses and permissions it needs to perform;
2) precise language requiring the user to “indemnify and defend” the library for any legal claims related to the event (including infringement); and,
3) proof that the user has the right insurance to back up to their indemnification.
The contract should also take into account what type of entity your library is, and how it occupies its location (Tenant? Owner? What type of insurance do you have?).
A lawyer familiar with insurance, real property, copyright, and premises liability law should be able to put this together for you.
Answer #3: That said, there are several types of performance that are exempt from copyright infringement claims. For example, under §110 (4) of the Copyright Act, it is not a violation to perform a musical work live and in person, or even to play a pre-recorded song, so long as the performance is “without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” and there is no “direct or indirect admission charge.”
In other words: no transmission + no money + no commercial advantage = no problem.
Of course, “commercial advantage” can be a tricky phrase. If the song is being performed at the library’s annual fund-raiser, even if the performers are donating their talent, the use is not allowed. When you think about it, that makes sense—what if the copyright owner doesn’t want to help the library with its fund-raiser? Congress was very careful in its commentary to clarify that commercial use under 110(4), even if it is for a charity, is not allowed.
Further, is important there can be no “payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers” (this, again, is to prevent the free use of copyrighted material under the “guise of charity”).
That said, Congress has commented that the exemption would not be lost if the performers, directors, or producers of the performance, instead of being paid directly “for the performance,” are paid a salary for duties encompassed by the performance (like the salaried local high school music teach conducting an otherwise qualifying performance of the “Show Choir” at the library).
And finally…110(4) can apply whether the performance is by your library, or by an (uncompensated) third party. The devil is always in the details, so check with a lawyer before using this exemption, but don’t forget it’s available!
Answer #4: If your library is regularly playing lots of music or tv, you should evaluate if your library needs a license under a performing rights society such as ASCAP, SESAC, or BMI.
A “performing rights society” is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners. They notoriously bring lawsuits against public places like bars and restaurants for failing to secure the proper licenses.
Now, this is not guidance I typically give a library, and ASCAP, SESAC, and BMI don’t make a habit of suing libraries. But there’s a first time for everything, so if your library routinely has more than one radio or tv on (that doesn’t sound like a typical library, but libraries are anything but typical these days), and you are playing music on more than one radio on a regular basis, rule that need out.
Answer #5: The member’s final question addresses recording a performance at the library, and posting it online.
As the question suggests, this is where you have to be very careful. A performance that might be allowed under 110(4) will become an infringement if posted to the Internet or “transmitted” in any way. Under 17 U.S.C 1101, it could even result in a claim by the performer! So if the intent is for your library to record, stream, broadcast, or otherwise transmit the on-premises performance, the precise circumstances should be examined very carefully, and you should make sure you have the right permissions.
So, does this mean you have to force every parent lovingly recording their child’s rendition of the theme from “Moana” during Musical Story Hour to put down their phone and just watch the performance? No. While there may be sociological reasons to do that, if your library isn’t urging or facilitating the recording or transmitting, it would be enough to put in your program “Please simply enjoy the performance, and please do not transmit any recording of it.” Basically: be able to show that you didn’t allow, contribute to, or facilitate, any infringement.
And will Disney sue the parents of a cute kid belting out a super-sweet rendition of “How Far I’ll Go” at the local library? Unless it goes viral, it’s not too likely. But either way you’ll be able to rest easy, knowing your policy requires them to do the right thing.
Thanks for the questions!
 Maybe they are one of those rock stars that hate libraries. I have heard that Metallica leaves a trail of fines and broken spines in the wake of every city they play.
 I am of course kidding about Metallica. Please don’t sue me, Lars!
 I checked the PACER database of federal law suits and could not find any cases brought by them against a library.
 For more on this, see the “Ask the Lawyer” guidance titled “Transmission of a Television News Broadcast.”
 I am a curmudgeon about people being so busy recording a moment, they don’t actually see it.
 Since I have a 4-year-old, I have this song memorized.