That's a good question, and obviously one for the courts to ultimately answer, but I'd say no, and the Copyright Office agrees -- in the same decision referenced above, the CO said that ringtones were basically for "private use," even if they were used to identify the user in public.
Used to identify the user? I don't understand.. when a CD is playing on my stereo, and the phone rings, who exactly is being identified by this coincidence?
Thanks, Nilay, very helpful. That clears up the biggest issue that was nagging me. But I have one additional (admittedly even more academic) issue -- what about moral rights for non-US jurisdications? That is, artists who allege that the particular portion of a song used as a ringtone, or the fact that it is used as a ringtone in the first place, is somehow a misuse of that artist's work...
It identifies the user in the sense that ringtones are often used as a unique, personal expression, and custom ringtoms are certainly so. That is not to say that anyone could hear a ringtone and immediately identify it as belonging to a specific person based solely on the ringtone itself. Rather, it points to the use of a ringtone as a "personal signature", such as the idea behind someone choosing a particular ringtone that reflects their personal tastes. This seems to be the basis for the question of whether or not such a ringtone constitute a public performance: if I use a ringtone as a personal expression or calling card, then theoretically, I could be performing a part of my attitude as reflected in that ringtone.
So, since I have "The Green Hornet" as my ringtone on my Motorola Q(rap), and I actually am the Green Hornet when not using my secret identity of Portwineboy, am I infringing?
I see. Well, I guess I'll just have to see what the law says on this. I need some data. Specifically, how many times does the law permit me to play a song I've bought on my stereo before it becomes my "personal signature". And, when I'm listening to a song within earshot of others, like on the beach or something, what is the diameter of my royalty-free zone and how many folks are allowed within its perimeter?
I'll just keep all this data tabulated in my wallet so I can reference it each time I'd like to play a song in public. Then I'll know exactly when I am required by law to switch to a new song.
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Nilay, a quick question -- does the playing of ringtones in public constitute a public performance under the Copyright Act?
That's a good question, and obviously one for the courts to ultimately answer, but I'd say no, and the Copyright Office agrees -- in the same decision referenced above, the CO said that ringtones were basically for "private use," even if they were used to identify the user in public.
Used to identify the user? I don't understand.. when a CD is playing on my stereo, and the phone rings, who exactly is being identified by this coincidence?
Thanks, Nilay, very helpful. That clears up the biggest issue that was nagging me. But I have one additional (admittedly even more academic) issue -- what about moral rights for non-US jurisdications? That is, artists who allege that the particular portion of a song used as a ringtone, or the fact that it is used as a ringtone in the first place, is somehow a misuse of that artist's work...
It identifies the user in the sense that ringtones are often used as a unique, personal expression, and custom ringtoms are certainly so. That is not to say that anyone could hear a ringtone and immediately identify it as belonging to a specific person based solely on the ringtone itself. Rather, it points to the use of a ringtone as a "personal signature", such as the idea behind someone choosing a particular ringtone that reflects their personal tastes. This seems to be the basis for the question of whether or not such a ringtone constitute a public performance: if I use a ringtone as a personal expression or calling card, then theoretically, I could be performing a part of my attitude as reflected in that ringtone.
Clear as mud?
So, since I have "The Green Hornet" as my ringtone on my Motorola Q(rap), and I actually am the Green Hornet when not using my secret identity of Portwineboy, am I infringing?
I see. Well, I guess I'll just have to see what the law says on this. I need some data. Specifically, how many times does the law permit me to play a song I've bought on my stereo before it becomes my "personal signature". And, when I'm listening to a song within earshot of others, like on the beach or something, what is the diameter of my royalty-free zone and how many folks are allowed within its perimeter?
I'll just keep all this data tabulated in my wallet so I can reference it each time I'd like to play a song in public. Then I'll know exactly when I am required by law to switch to a new song.