Q: I reviewed your column dated December 9, 2012 (“Associations Can Run Afoul of Copyright Protections”). I find it hard to believe that if my association buys a DVD that it does not become our property, to show to whom we please.
– D.V. (via e-mail)
A: The fundamental question is whether the display of copyrighted materials by a community association constitutes a “public performance” of the copyrighted material. The law defines “public performance” to include “any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” In the case of Hinton v. Mainlands of Tamarac, a 1985 federal court case, the court considered whether a dance held by a condominium association constituted a “public performance”, thus protecting copyrights on the music played at the dance. The association argued that the clubhouse, where the dance was held, was an extension of the residences’ living room and therefore fell within the “family” exception to the law. The court gave this argument short shrift because this association charged an admission fee of $3, and members of the general public were permitted to attend the dances.
While there is language in the Mainlands case that suggests that a performance limited to condominium residents, with no admission fee, might not be considered “public”, there is no court holding that I have been able to locate directly on point.
While arguments can perhaps be made on both sides, and the facts surrounding any particular inquiry will be key, a cautious approach is in order. I certainly would recommend that any association wishing to display or permit the display of copyrighted materials consult with legal counsel, as the consequences for copyright infringements can be substantial.
Joe Adams is an attorney with Becker & Poliakoff, Fort Myers.