In our July newsletter, we posed the question of whether the American Society of Composers, Authors, and Publishers (ASCAP) was crazy (tongue in cheek, or course). You may recall that ASCAP was seeking public performance licensing fees for ringtones. ASCAP demanded royalties for every transmission and sounding of a ringtone because each was a public performance of a copyrighted work. In May 2009, Verizon Wireless (Verizon) filed a motion for summary judgment arguing that that the transmission and playing of ringtones was not a public performance.
Since publication of our newsletter, the court in In re Application of Cellco Partnership D/B/A Verizon Wireless, Opinion & Order, 09 Civ. 7074 (S.D.N.Y. October 14, 2009), decided in favor of Verizon, as predicted. The court held that transmissions of ringtones to individual customers were not “public” performances because there was neither a nexus between the transmission and a performance of a ringtone, nor was there a perception of a performance by any recipient of the transmission.
ASCAP also maintained that the ringing of a ringtone constitutes a public performance for which Verizon was either directly or secondarily liable. The Court made short work of that argument, noting that the Copyright Act exempts performances for works within the “normal circle of a family and its social acquaintances” or for which there was no expectation of profit arising out of the performance. Copyright Act § 110(4). Clearly, the sounding of ringtone, in the words of the Court, “fits comfortably within [the] statutory exemptions.” Finally, the Court wrote that where there has been no primary infringement of the performance right, Verizon could not be held secondarily liable.
— Adam G. Garson, Esq.