Healthcare Facilities: Exercise Caution Before Performing Music and Movies in Public Spaces

Key Takeaways

• Playing music, movies, or television in hospital lobbies, waiting rooms, cafeterias, and other public spaces requires specific licenses from copyright owners.
• Purchasing a copy of a work (e.g., sheet music, a streaming subscription, or a DVD) does not automatically grant the right to publicly perform that work.
• Statutory damages for copyright infringement can range from $750 to $150,000 per work, plus attorneys' fees and costs.
• Hospitals can mitigate risk through copyright-compliant content vendors, blanket licenses from organizations such as ASCAP, BMI, and SESAC, or by constraining use to fit within narrow Copyright Act exemptions.

Introduction

A pianist performing holiday songs in a hospital lobby, a children's movie playing in a pediatric department waiting room, a pop song from a streaming service played over speakers in the hospital cafeteria—these scenarios all require a license from the owners of the copyright in the associated works. Is playing music or a movie in your hospital's lobby, waiting room, or cafeteria putting your organization at risk of receiving a claim for copyright infringement?

The Public Performance Right

The Copyright Act gives copyright owners the exclusive right to publicly perform musical works and audiovisual works (like motion pictures and television shows). To 'publicly perform' these works means to play them in 'a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.'

Unfortunately, the license to publicly perform a musical or audiovisual work does not usually accompany the copy of the work that is being performed: For example, buying a copy of sheet music does not give the pianist a license to play the song publicly, nor does playing a movie obtained through a streaming service subscription usually include permission to publicly perform the movie or the music in the movie's soundtrack. Without the requisite license, hospitals playing music or audiovisual works in their lobbies may be infringing on the copyright owner's exclusive right to publicly perform the work.

Potential Liability

Hospitals ignore the risk of copyright infringement claims at their peril. The Copyright Act allows the copyright holder to obtain either actual damages and an infringer's profits, or statutory damages ranging from $750 to $30,000 per work infringed—an amount that can rise to $150,000 if the infringement was willful. Importantly, the Copyright Act also allows for the prevailing party to recover attorneys' fees and costs, which substantially raises the stakes associated with a copyright infringement claim. 

The risk of being sued for infringing on the public performance right is enhanced because organizations exist whose sole purpose is to license the right to publicly perform works, and thus have a vested interest in enforcing the right. These organizations monitor hotels, bars, restaurants, and even healthcare facilities to ascertain whether copyright infringement is occurring, and their reports regarding the existence of public performances can provide evidence to support an infringement claim.  See, e.g., MOB Music Publ'g v. Zanzibar on the Waterfront, LLC, 698 F. Supp. 2d 197 (D.D.C. 2010) (citing ASCAP's evidence of public performances of musical works at a night club in holding defendants liable for copyright infringement and awarding $40,000 in statutory damages and $74,712.22 in attorneys' fees and costs).    

Options for Addressing Copyright Risk

Hospitals have several options to address the risk that they are infringing others' copyrights:

Option 1: Copyright-Compliant Content

The hospital could obtain copyright-compliant content from a vendor for use in its waiting rooms, break rooms, and other public spaces. Importantly, the hospital should couple its acquisition of such content with a prohibition on staff playing any other music or audiovisual content in public spaces within the facility. Implementation of a consistent policy that complies with the Copyright Act should insulate the hospital from liability.

Option 2: Blanket Licenses

The hospital could obtain blanket licenses. Entities like ASCAP, BMI, and SESAC issue blanket licenses covering the public performance of musical works owned by their respective members, and the Motion Picture Licensing Corporation provides blanket licenses for certain television and movie content. No blanket license covers all musical or audiovisual works, so there is still a risk of infringement occurring. However, the licenses provide a good deal of protection, and getting licenses demonstrates the hospital's good faith effort not to infringe, which would be a factor justifying a lower amount of statutory damages.

Option 3: Copyright Act Exemptions

The hospital could explore whether it is willing to constrain its use of content to fit within the Copyright Act's exemptions for publicly performing works. Be warned: The exemptions are narrow and very specifically defined—for example, playing broadcast television (not streaming services, however) can be exempt depending on the size of the facility, the number of devices used to play the show, and the screen size—thus an exemption may not be an option for many hospitals.

Conclusion

Although music and audiovisual works can contribute to a pleasant hospital experience, the hospital needs to take care that providing these works in public areas does not result in copyright infringement.

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Catherine Maxson is of counsel in DWT's Seattle office. For any questions or more information, please reach out to Catherine, another member of our intellectual property team, or a member of our healthcare team. To stay informed, sign up for our alerts.