Condo Media - January 2019 - 47

While I had some concern that this
topic may seem obscure to many, my
fears appear to have been unfounded,
as we ended up tallying responses from
over 100 participants. The results were
interesting, and confirmed that the
impact of copyright law on community
association living is a subject worthy of
discussion and understanding.
Of our survey participants:
n Almost 40% indicated that their association has hosted or authorized a
resident to host a function in a common area facility at which recorded
or live music was played.
n Just about a quarter of participants
(24%) indicated that they have hosted
or authorized a resident to host a "movie night," book club/reading, or other
performance of copyrighted materials
in common areas.
n Another 44% indicated that they play
or allow residents to play music in
common areas such as pool areas or
fitness facilities.
In addition, 20% of respondents
reported that their associations use
images or artwork in their webpage
or other materials without knowing
whether they own the rights in such media. Overall, these numbers were higher
than what we anticipated and suggest
that a number of associations may have
unwittingly exposed themselves to
potential infringement liability.
Many respondents wrote that they
only allowed individuals to play music
from CDs, iPods, or similar devices; however, this alone would not necessarily
absolve the association from copyright
infringement. Other respondents indicated that no money was charged in connection with the events, and thus, they
did not anticipate any issue. Again, while
the exchange of funds may be a contributing factor in an infringement finding,
there can be infringement without any
ticket sales, contributions, or donations.

Associations should be
aware that unlicensed
displays or performances
of protected works
(including music, movies,
etc.) may be in violation
of federal law.
COPYRIGHT PROTECTIONS
AND INFRINGEMENT
To understand the potential liability
facing community associations with
respect to potential infringement
claims, it is important to understand
the protections that the Copyright Act
affords to copyright owners. The Copyright Act (17 USC §104) provides that a
copyright owner has five basic rights in
a copyrighted work:

1
2
3
4
5

The right to reproduce
the work;
The right to prepare
derivative works;
The right to distribute
copies or phonorecords;
The right to perform
the work publicly; and,
The right to display
the work publicly.

While not all of these rights are
likely to be problematic in the association context, many associations inadvertently run afoul of the restrictions
prohibiting unauthorized reproduction, public display, and performance
or even distribution of copies.
Pursuant to 17 USC §501 (a): "Anyone who violates any of the exclusive
rights of the copyright owner ... is an

infringer of the copyright or right of
the author, as the case may be."
In the case of community associations,
infringement most frequently manifests
itself in the form of unlicensed or unauthorized public or semi-public displays
or performances of copyright protected
works. The Copyright Act requires that
an association have the appropriate
license(s) in place for any public performance of protected works.
Penalties for infringement are significant. A copyright owner can receive
either actual damages and profits, or
statutory damages in the amount of
up to $150,000.
WHY THIS MATTERS
TO YOUR COMMUNITY
It may not. Of over 100 respondents
to our survey, only one replied that he
had received a notice of infringement
or other communication from a Performance Rights Organization ("PRO").
This is not particularly shocking. By
and large, it seems that PROs would
not necessarily make community associations in New England their top
targets for infringement claims. We
suspect that restaurants, bars, hotels,
and other such facilities are much
more likely to end up on the receiving
end of a PRO demand.
However, that is not to say that
community associations should not
be mindful of these issues. For those
associations who regularly allow or
host displays or performances at their
common facilities, best practice would
be to obtain licenses directly from the
PROs, to negotiate with performers
to ensure that they have proper
licenses in place, or to attempt to ensure that any displays or performances
of copyright materials are otherwise
covered by appropriate exceptions
to infringement.
n SCOTT ERIKSEN, ESQ. IS A
PARTNER IN THE LAW FIRM OF
PERKINS & ANCTIL, P.C.

January 2019 CONDOMEDIA

47
Condo Media - January 2019

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