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 ¬ß 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.