Hastings Communications and Entertainment Law Journal


Paul Warenski


The 1976 Copyright Act entitles copyright owners of musical works to compensation for public performances of their songs. Congress carved out several exemptions in the 1976 Act, however, one of which is section 110(5). Section 110(5) denies compensation to copyright owners for transmissions made on radio or television equipment that is comparable to equipment used in private homes. Thus, under section 110(5) the small business owner who listens to a portable radio during business hours need not pay copyright licensing fees to every musician featured on the radio. This note examines the origin, content, and legislative history of the section 110(5) exemption to the 1976 Copyright Act. It then analyzes the inconsistent and unpredictable case law generated by the section 110(5) exemption. The note concludes by offering solutions that, if adopted, should make section 110(5) litigation less frequent and the results less arbitrary.