It’s a perennial problem for business owners. They try to entertain their customers and provide a pleasant ambiance, but are never quite sure what copyright law does and doesn’t allow them to do. Too often, this doesn’t even occur to them until a demand letter shows up in the mail accusing them of copyright infringement. And yes, the Copyright Act applies to the public performance of all music and video, even those broadcast for free on the radio or TV.
Section 110(5) of the Copyright Act was passed to help alleviate this burden on small businesses who might not be able to afford a public performance license. It exempts certain activities from infringement liability. Section 110(5) contains two subsections that were adopted at different times. The first is a simple provision meant for the single TV or radio in the waiting area of a small storefront. The second is more recent and much more complicated; it was advocated by the restaurant industry, and contains extremely detailed calculations about just how big a restaurant can be, and how many speakers or screens it can have, before it needs a license.
Of course, as with any law, each time a new term is introduced, the potential for ambiguity and interpretation arises. And trying to navigate all the various numbers and restrictions can be dizzying. I’ve had significant experience with this provision, though. So, to help you sort it out, I offer this flowchart. I hope you find it useful.
Now here come the disclaimers: this chart is not legal advice. Consult your own attorney before using this information to make decisions. Different courts may interpret this statutory language differently.