C3 Patent and Intellectual Property Law

Jun252009 | Steve O'Donnell

Ring tones as public performance of songs

ASCAP thinks your ringtones are copyright infringement. Not just ringtones you've made yourself, but maybe also those that you've purchased from your carrier.

The Electronic Frontier Foundation has posted a brief from ASCAP (The American Society of Composers, Authors and Publishers) wherein their attorneys argue that a ringtone constitutes a public performance of the song and demands to be paid.

I don't think I would offend anyone if I said that copyright law is a confused and confusing creature that should be mercifully killed in order for something else to take it's place. Copyright law reaches its peak as an arcane body of law when discussing how it pertains to music.

One of the more problematic copyrights is the right of public performance. One may think it reasonable that a recording artist should be able to stop another from playing their music in public (we'll assume that the artist is the copyright holder). For example, one might not want their music to become associated with a group that they don't support (this came up a few times over the last Presidential campaign). It gets a little dicier if you change some of the facts, what if instead of a rally, the music is played at a small group meeting that the artist doesn't like, what if it's blared out of a car that the artist doesn't like, or played in a steakhouse when the artist is a vegetarian? How much control does the copyright holder have over their music once it's released? How much control is enough without being too much?

The amount of control the copyright owner retains in the absence of a license can be hard to discern. In most instances public performance licenses are used to clear music so the entity playing the music is in compliance with the law and can avoid penalties later, but I don't know of anyone that would purchase a license so they would turn their car stereo up and drive with the top down.

Turning to ringtones, ASCAP seems to think that the few second sample that your phone plays should count as a public performance and that someone should pay for it. This doesn't mean that you should worry about being sued next time your “Baby Got Back” ringtone goes off, 17 U.S.C. § 110(4) would protect your use. . . provided you don't charge others at your table to listen to your ringtone. Rather, ASCAP thinks that the ringtone providers should pay a public performance license fee.<

ASCAP's theory of infringement is a long shot and will almost certainly fail. What is troubling is that there is just enough uncertainty about what constitutes a public performance that this will escape Rule 11 sanctions.