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, Third Edition broadcaster is performing when it transmits the network broadcast; a cable television system is performing when it retransmits the broadcast to its subscribers; and any individual is performing whenever he or she plays a phonorecord embodying the performance or communicates the performance by turning on a receiving set." Id., reprinted in 1976 U.S.C.C.A.N. at 5676-77.

A performance or display that is transmitted to the public is considered a public performance or a public display "even though the recipients are not gathered in a single place, and even if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission." Id. at 64-65, reprinted in 1976 U.S.C.C.A.N. at 5678. "In other words, 'the public' need not be situated together, spatially or temporally" for a public performance or public display to occur. American Broadcasting Companies, 134 S. Ct. at 2510.

Moreover, "when an entity communicates the same contemporaneously perceptible images and sounds to multiple people, it transmits a performance to them regardless of the number of discrete communications it makes." Id. at 2509. For instance, when an entity "streams the same television program to multiple subscribers, it 'transmit[s]... a performance' to all of them," regardless of whether the entity makes the transmission "from the same or separate copies" or from "user-specific copies." Id. (quoting 17 U.S.C. § 101 (definition of "perform or display a work 'publicly'"]).

1908.4 Private Performances and Private Displays

Section 101 of the Copyright Act expressly states that a public performance or a public display "does not of itself constitute publication." 17 U.S.C. § 101 (definition of "publication"). Therefore, a private performance or a private display in and of itself does not constitute publication.

1909 Specific Forms of Publication

1909.1 Unpublished Work Embodied in a Published Work

An unpublished work is considered published when it is embodied in another work of authorship that has been published, but only to the extent that the unpublished work is disclosed in the published work.

Examples:

• When an unpublished screenplay is used in the creation of a motion picture, the elements of that screenplay that appear in the motion picture are published when (i) copies of the motion picture are distributed to the public, or (ii) when copies of the motion picture are offered to a group of persons for further distribution, public performance, or public display.

• When an unpublished musical work is incorporated in a distributed sound recording, the elements of that work that are incorporated into the sound recording are published when (i) copies of the sound

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