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Copyright (c) 2011 The Seattle University Law Review
Seattle University Law Review

NOTE: Copyright "Band-Aids" and the Future of Reform

Summer, 2011

Seattle University Law Review

34 Seattle U. L. Rev. 1545


Kurt E. Kruckeberg +



A young couple shares a romantic dinner at a posh, softly lit restaurant. Having just finished dessert, the young man rises from the table, reaches into his pocket, and removes a small velvet-wrapped jewelry box as he drops to one knee. Opening the box and his mouth to issue a marriage proposal, he is interrupted by the vocal stylings of Nazareth issuing from a mobile telephone stashed in a purse under a nearby table:
Love hurts, love scars
Love wounds, and mars
Ooh, ooh, love hurts. 1

Has the young couple been victimized by fate or merely subjected to a public performance of Nazareth's work? While the question of fate is beyond the scope of this Note, the question of what constitutes a public performance was recently addressed by the United States District Court for the Southern District of New York. 2

In the case of In re Cellco Partnership, the "Ringtone Decision," the court held that a ringtone does not constitute a public performance for which a mobile carrier must acquire a license. 3 But to reach its decision, the court had to grapple with precedent that is difficult to reconcile. 4 The court interpreted "public performance" under the Copyright Act 5 one way in one context, and a different way in another context. 6 This malleable interpretation dependent on context is reminiscent of Professor Jessica Litman's statement:
There are moves that copyright lawyers make when the law isn't working well for them. ...

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