Performance [Patents] Law and Legal Definition

According to 37 CFR 261.2 [Title 37 -- Patents, Trademarks, and Copyrights; Chapter II -- Copyright Office, Library of Congress; Subchapter B -- Copyright Arbitration Royalty Panel Rules and Procedures; Part 261 -- Rates and Terms for Eligible Nonsubscription Transmissions and the Making of Ephemeral Reproductions], the term performance “is each instance in which any portion of a sound recording is publicly performed to a listener via a Web Site transmission or retransmission (e.g. the delivery of any portion of a single track from a compact disc to one listener) but excluding the following:

(1) A performance of a sound recording that does not require a license (e.g., the sound recording is not copyrighted);

(2) A performance of a sound recording for which the service has previously obtained license from the copyright owner of such sound recording; and

(3) An incidental performance that both:

(i) Makes no more than incidental use of sound recordings including, but not limited to, brief musical transitions in and out of commercials or program segments, brief performances during news, talk and sports programming, brief background performances during disk jockey announcements, brief performances during commercials of sixty seconds or less in duration, or brief performances during sporting or other public events; and

(ii) Other than ambient music that is background at a public event, does not contain an entire sound recording and does not feature a particular sound recording of more than thirty seconds (as in the case of a sound recording used as a theme song).”