Wednesday, December 23, 2009

From the archives

Georgetown's excellent law librarians just dug this up for me: an ad for Maxwell's, the video rental store found liable for violating the public performance right in Columbia Pictures Industries v. Redd Horne, 749 F.2d 154 (3rd Cir. 1984), by renting movies to be viewed in in-store viewing rooms. Text: “To introduce you to the enjoyment of home video movies, Maxwell’s would like you to try a showcase promotional screening. Come to Maxwell’s and rent any of the 21 private showcase rooms, which hold 2 people comfortably. You pay only for the rental of the showcase room. You have free use of Maxwell’s entire library of video films…. See as much as you like—segments of several films or watch a full length movie…. If you already own a video unit and buy a tape from Maxwell’s your showcase rental fee is deducted from the price of the tape…. Free popcorn and assorted soft drinks are provided for your pleasure while visiting Maxwell’s!”

I just wanted to show this off--another great addition to the Georgetown IP Teaching Resources Database (interested? contact me!). However, if anyone can explain to me why home rental is not also public performance under Nimmer's logic, adopted by the court ("If the same copy of a given work is repeatedly played by different members of the public, albeit at different times, this constitutes a public performance."), I would be quite intrigued.

1 comment:

Bruce Boyden said...

Fantastic find. By coincidence, I've just been mulling over this issue, and came across Nimmer's discussion of this. Nimmer thinks that the logical extension of this argument is that rentals are suspect:

In the abstract, it may be argued that the practice of renting a given videocassette of a motion picture to various members of the public gives rise to "public" performances of the work, although each such performance of the work on a home television set is received only by an individual or family group. Nevertheless, the same copy gives rise to numerous performances, which are received by the public "at different times." Therefore, under the wording of the Act, and by reason of the underlying rationale of what constitutes a "public" performance, it may follow that each individual rental performance is a "public" performance.

I think this has to be wrong; I think multiple private performances is getting confused here with seriatim public performances to small groups. If the viewings in the home are not public performances, then stacking them up doesn't make them a public performance.