Employment Law Duties

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Associations that have their own employees have numerous obligations for compliance with state and federal labor laws and regulations. The checklist items in this section mention only a few specifics. Seek legal advice to be sure your association complies with all employment laws. We cannot include all of the employment related duties in this publication. However, we have included some important duties:

Workers Compensation Insurance

Be sure that you have workers compensation insurance for employees and pay taxes withheld from employees pay when due. Most insurance professionals advise associations that have no employees to have at least a basic workers compensation policy for defense and indemnification from unfounded claims that someone who was injured was an association employee.

Fidelity Bond Coverage

Associations are now required to maintain fidelity bond coverage for its officers, directors and employees in an amount that is equal to or more than the amount of the association’s reserves plus total assessments for three months. The fidelity bond must also include computer fraud and funds transfer fraud. If your association uses a managing agent or a management company, your association’s fidelity bond coverage must be separate from the fidelity bond of the management company or managing agent and must also include dishonest acts by that person, entity and its employees. [CC §5806]

Independent Contractor or Employee?

Be sure you know whether your independent contractors are truly independent contractors and not employees. The penalties under workers compensation laws and unemployment compensation laws for failure to pay overtime and the Labor Code for misclassifying an employee as an independent contractor can be severe. [Labor Code §§226.8, 2750.3, 2753, 2775-2787]

Security Service Personnel

Associations that have security service personnel directly employed by the association must register those private security officers with the Department of Consumer Affairs. [Bus. & Prof. Code §7574 et seq.]

Discriminatory Employment Practices

Associations must avoid numerous unlawful or discriminatory employment practices. [Gov. Code §12940]

Injury, Illness & Prevention Program

Associations must have an effective Injury, Illness and Prevention program if it has employees. [Cal. Code Regs., tit. 8, §3203(a)]

Paid Sick Leave

Associations must provide paid sick leave to all employees who work for the association for 30 or more days within a year from the commencement of employment. [Cal. Labor Code §246]

Membership/Owner Duties

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Resale Disclosure Statement

Owners must provide a completed statutory disclosure form to purchasers before reselling residential property. This also must be completed by a real estate agent, if any. The form is extensive and detailed and found in the statute. [Civ. Code §1102 et seq.; see e.g., §1102.6]

Smoke Detectors in Owner Units

Each owner must supply and install smoke detectors in accordance with the manufacturer’s instructions in any unit intended for human occupancy. Each smoke detector must be operable at the time that any tenant occupies a unit and must be repaired if the tenant reports a problem. The association is responsible for installing, maintaining and testing smoke detectors in hallways, common stairwells, etc. [Health & Saf. Code §§13113.7 & 13113.8]

Carbon Monoxide Detectors in Owner Units

Owners must install an approved carbon monoxide detector by July 1, 2011, in any single-family dwelling unit intended for human occupancy that has a fossil fuel burning heater or fireplace. For all other existing dwelling units intended for human occupancy, the deadline is January 1, 2013. [Health & Saf. Code §§17926-17926.2] Selling owners must disclose in the required form whether the unit being sold has a carbon monoxide detector. [Civ. Code §1102.6]

Low-Flow Plumbing Fixtures

Caution for associations and owners: all single-family dwellings must replace noncompliant plumbing fixtures no later than January 1, 2014 or January 1, 2017, depending on factors specified in the statute. The date is January 1, 2019 for multi-family residential properties and commercial properties. Failure to provide proof of compliance could prevent the issuance of building permits. It is not clear if multi-family residential includes condominiums and attached planned development housing. See statute for details and disclosure duties. [Civ. Code §§1101.1 – 1101.9 and 1102.155] Flow rates of noncompliant fixtures are in California Civil Code section 1101.3. It may take additional legislation for clarification and for how an HOA that does not maintain, repair or replace plumbing fixtures could compel owner compliance.

Membership Meetings

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Nomination and Election Procedures

Associations must adopt election rules [CC §5105(a)], but the requirements of §5100-5145 do not apply if the governing documents provide that one member from each separate interest is a director. [§5100(f)] Every corporation must have reasonable nomination and election procedures given the nature, size and operations of the corporation. Certain specific requirements apply in corporations with 500 or more members and in corporations with 5000 or more members. [Corp. Code §7520-7525] Consult the statutes for details. There are a multitude of additional requirements on election rules, requirements for independent inspectors of election and other detailed requirements that are stricter or different from the requirements in the Corporations Code. Association funds may not be used for campaign purposes in board elections or in other membership votes. Consult the relevant statutes for requirements. [CC §§5100-5145]

Parliamentary Procedure Adoption

Adopt a recognized system of parliamentary procedure and/or other parliamentary rules for conducting membership meetings. It’s a good idea, but not mandatory for board meetings. [CC §5000] Some governing documents require use of a specific system of parliamentary procedure (like Robert’s Rules of Order) for member meetings, but most do not specify the system of procedure. Even if Robert’s Rules is specified, there are numerous books entitled Robert’s Rules of Order, so if Robert’s Rules is specified, it is best to identify which title, publisher and date you are using.

Election Rules

Associations must adopt election rules [CC 3.§5105(a)], but the requirements of CC §§5100-5145 do not apply if the governing documents provide that one member from each separate interest is a director. [CC §5100(f)]

Election Inspectors

Appoint one or three election inspectors, preferably in advance of the annual meeting and any membership vote by secret ballot to perform the duties specified in the statute. Civil Code controls over Corporations Code. [Civ. Code §5110; Corp. Code §7614] Bylaws or election rules may set the number of inspectors at 1 or 3 and specify the qualifications for the inspector(s). The association’s manager may only be an inspector if allowed by the election rules.

IRS Revenue Ruling Needed?

Consult with the association’s accountant regarding the appropriate resolution, if needed, to adopt at the annual meeting for the treatment of any surplus income over expenses from the current fiscal year. [IRS Revenue Rulings]

Secret Ballots-Double Envelopes

Use a secret ballot and a double envelope system mailed to all owners at least 30 days in advance for all elections and removal of the board, membership votes regarding assessments, votes on amending the governing documents or the grant of exclusive of common area under CC §4600. There are a multitude of additional requirements on election rules, requirements for independent inspectors of election and other detailed requirements that are stricter or different from the requirements in the Corporations Code. Association funds may not be used for campaign purposes in board elections or in other membership votes. Consult the relevant statutes for requirements. [Civ. Code §§5100-5145] There is a maximum of one year to file an action for a violation of the article on elections. [Civ. Code §5145; Compare with Corp. Code §7527.]

Written Ballots in Lieu of Meeting (not Secret Ballots)

Written ballots to members (used in place of a meeting) must meet many specific requirements to be valid. [Corp. Code §7513] Written ballots are signed and dated by the voter and cannot be used when the Davis-Stirling Act requires a secret ballot.

Timing of Member Meeting Notices

Give written notice of membership meetings at least 10 and not more than 90 days before the meeting date. If notice is given by mail, and the notice is not mailed by first-class, registered, or certified mail, notice must be given at least 20 days before the meeting. Notice of meetings at which directors are to be elected must include the names of all those who are nominees at the time notice is given to members. [Corp. Code §7511] Corporations with more than 5000 members must have articles or bylaws that set a date for the close of nominations for the board. The date must be no less than 50 and no greater than 120 days before the election, and no nominations are permitted after that date. [Corp. Code §7522]

Topics Specified in Notice

Specify matters intended to be presented at the meeting in the notice of the meeting. [Corp. Code §7511(a)]

Special Meeting Petition

When a special meeting is called by a petition signed by the specified percentage of the members [Corp. Code §7510(e)], the Board must set the date, time and place of the meeting between 35 and 90 days after receipt of the petition and send notice within 20 days after receipt of the petition, or the persons signing the petition may give the notice. [Corp. Code §7511(c)]

Maximum Adjournment

No membership meeting may be adjourned for more than 45 days. [Corp. Code §7511]

Proxies

Any proxy distributed to 10 or more members in a corporation with 100 or more members must include the chance to specify a choice between approval or disapproval of each matter or group of related matters intended to be presented at the meeting. [Corp. Code §7514] Proxies may not be used in lieu of a secret ballot. Any proxy holder must complete a secret ballot. Any instruction in a proxy that directs the manner of voting must be set forth on a separate page of the proxy that can be detached.

Proxy Validity

Consult the statute for details on proxy validity. [Corp. Code §§7517 and 7613]. IMPORTANT: Under California Corporations Code section 7613(g), a proxy cannot be used for certain types of votes, including recalls, unless it generally mentions the nature of the transaction for which it will be used. Many associations do not use proxies any longer after the secret ballot, double envelope system took effect. Under California Corporations Code section 7613(f), proxies can be prohibited only if the members amend the Bylaws or Articles to do so.

Cumulative Voting

Cumulative voting is authorized in all new associations and many older associations. The Corporations Code and many bylaws state that no one may vote cumulatively unless the candidate’s name was placed in nomination before the voting, and someone gives notice prior to the voting of the intention to cumulate votes. As such, we recommend that the board give such notice before sending or with any proxies used for the election that provide for cumulative voting. [Corp. Code §7615]

Election Results

The results of any election (not just for the board), must be reported to the board, recorded in the minutes and published within 15 days to all members. [Civ. Code §5120(b)] Election materials must be kept for a minimum of one year. [Civ. Code §§5125 & 5145(a)] There is a maximum of one year to file an action for a violation of the article on elections. [CC §5145; Compare with Corp. Code §7527.]

Senior Housing Duties and Rights

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Protecting Senior Status

The legal issues pertaining to senior housing developments are extremely complex and have been changing constantly as the laws change. Any association interested in preserving its senior status needs to consult regularly with legal counsel.

Age Verification

Senior associations should have adopted procedures for age verification no later than October 30, 1999, and, at a minimum, must perform age verification surveys or update age verification survey information at least once every two years and get forms completed by any new occupants as soon as possible. [24 C.F.R. 100.307(b)]

What To Do When Your Association And/Or Board of Directors is Served With A Lawsuit

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  • Note Service Date, Time and on Whom
    • Make a written note immediately of the name of the person who was served with the papers, the time and the date. Your attorneys and insurance carrier will need to know this information, as you have only 30 days in which to file a response in State Court and 21 days if the lawsuit is in Federal Court.
  •  Act Promptly
    • Do not take a lawsuit lightly. Do not put the legal papers in a drawer or someone’s mail slot and wait for the person to see it. If you fail to protect your rights, the courts may not help to save you from your own mistakes, or, more likely, it will cost you a great deal more to undo the errors.
  • Notify Attorneys and Insurance
    • Immediately send a copy of the lawsuit to your attorneys and your insurance carriers noting the name of the person served, and the date and the time when they were served. Depending on your insurance policies and the nature of the claim, there may or may not be insurance coverage. Your attorneys may have to take the initial steps to protect your rights in the lawsuit.
  • Preserve Evidence
    • Your Association, all members of the Board of Directors, the Community Association Manager, and any employees of the Association have a legal duty to preserve evidence related to the lawsuit. Do not delete any emails or other electronically stored information, nor destroy any hardcopies of documents, letters, photographs, etc. If in doubt, ask your attorneys for guidance.
  • Preserve The Attorney/Client Privilege
    • Do not discuss the lawsuit with anyone other than your attorneys and other board members in executive session. Do not forward emails or other correspondence from your attorneys to anyone who is not a member of the board of directors, or the Community Association Manager.

Contracting Checklist

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In every contracting situation, from the smallest everyday project to the largest construction project, consider the following issues:

☐           Does the contractor have a valid California contractor’s license for the relevant specialty?

☐           Does the contractor have minimally acceptable levels of general liability insurance, automobile insurance and worker’s compensation insurance?

☐           Has the association been named as an additional insured on all of the contractor’s insurance policies?

☐           Have all the subcontractors submitted proof of their contractor’s licenses and insurance policies?

☐           Have all HOA and insured versus insured exclusion and contractor’s condition endorsements been deleted?

☐           Has the contractor complied with all of the association’s bidding requirements?

☐           Has the contractor supplied references and have the references been checked?

☐           Is there a written contract?

☐           Has the scope of the work to be performed been clearly defined?

☐           Does the association have to pay start-up costs to the contractor? Is the amount of the start-up costs reasonable (less than 10% of the total contract price)?

☐           Are progress payments required at reasonable intervals? Have payment obligations such as “upon delivery” been deleted?

☐           Have the payment provisions been written so that the association only pays for work that has been satisfactory completed?

☐           Is the contractor required to submit mechanics’ lien releases before each payment?

☐           Should the association write joint checks to the contractor and subcontractors if unconditional lien releases are not provided?

☐           Can the association hold retention from each progress payment until the end of the contract?

☐           Is final payment required after all mechanics’ lien rights have been expired?

☐           Are the starting and completion dates clearly specified?

☐           Is there a liquidated damages (predetermined monetary payment) provision in the contract?

☐           Would a performance bonus provision provide incentive to the contractor to finish earlier than required?

☐           Can the association terminate the contract “without cause?” If “cause” is required, is it clear under what condition the contract can be terminated?

☐           Has the contractor clearly indicated the warranties being given? Are there any materials manufacturer’s warranties?

☐           What exclusions are there in the warranties? Are these exclusions reasonable?

☐           Will the contractor be required to supply a performance bond or labor & materials bond?

☐           Is the contractor required to indemnify the association for its negligent acts and omissions?

☐           Have all obligations of the association to indemnify the other party been deleted from the contract?

☐           Have limitation of liability clauses been deleted?

☐           Does the contract require some form of Alternative Dispute Resolution mediation or arbitration) prior to or in lieu of litigation?

☐           Is there an attorneys’ fee provision in the contract?

☐           Has the contract been reviewed by legal counsel?

 

Rian Jones Defeats $2 Million Claim Against a Homeowners Association

Epsten represented a homeowners association in a lawsuit filed by Plaintiff, a former owner and President of the Association. The Plaintiff claimed that he was owed $2 million as compensation from the Association for his work in securing the agreement of the City of Oceanside to sell land to the Association. The Association’s buildings were constructed on land leased from the City of Oceanside for a term of 50 years. While the Plaintiff was serving as President of the Board of Directors, the Association entered into negotiations with the City to purchase the land. The Plaintiff acted as the point man for the Association in the negotiations with the City. The Association retained lawyers and other professionals to assist in the negotiations. The Plaintiff owned 5 units at the Association and, prior to the finalization of the deal with the City, he lost all 5 units in foreclosures and owed the Association more than $80,000.00 in past due assessments. Plaintiff resigned from the Board and was removed from his role as the point man in the negotiations. The Association was able to complete the deal with the City and purchased the land for $10 million. The Plaintiff sued the Association for fraud, misrepresentation, breach of contract, breach of fiduciary duty, and other claims. After prior counsel for the Association did not obtain the dismissal of the lawsuit, our firm took over as the attorneys for the Association. Attorney Rian Jones filed a successful motion for summary judgment and all of the Plaintiff’s claims were found to be without merit. The court has entered judgment in favor of the Association and the Association’s motion for determination of attorneys’ fees is pending.

The lawyers of the Civil Litigation Department of Epsten handle all litigation matters for our clients (except for construction defect litigation). Our attorneys work hard to obtain the best possible results for our clients. The above information describes just one of our results.

The above informational update is provided by the Epsten general civil litigation department, courtesy of its supervising attorney, Rian W. Jones. Rian has over 29 years of experience as a litigator and has tried over 50 Superior Court jury trials.

Results achieved in any given case depend upon the exact facts and circumstances of that case. Epsten cannot guarantee a specific result in any legal matter. The results discussed in this advertisement are dependent on the facts of the cases, and those results will differ if based on different facts. View our entire disclaimer.

Carrie Timko and Rian Jones Obtain Summary Judgment in Favor of a Senior Community in Hemet

Attorneys Carrie Timko and Rian Jones represented a Senior Community Association located in Hemet in a lawsuit brought by a Plaintiff homeowner. The Association has an identified Special Benefit Area (SBA) within the development that is provided for in the Association’s governing documents. Homes within the SBA pay a higher monthly assessment than other homes within the Association because of greater maintenance services provided within the SBA. The Plaintiff claimed that the Association was over-assessing her and all other owners within the SBA and had been doing so for years. The Plaintiff sued for an injunction to prevent the Association from collecting the SBA assessments, for unfair business practices, for restitution of the over-assessments and for declaratory relief. Recently, the court granted the Association’s motion for summary judgment and found that the Plaintiff’s claims had no merit. The Association is entitled to recover its attorney’s fees from the Plaintiff and will be filing a motion to have the court determine the amount of those fees.

The lawyers of the Civil Litigation Department of Epsten handle all litigation matters for our clients (except for construction defect litigation). Our attorneys work hard to obtain the best possible results for our clients. The above information describes just one of our results.

The above informational update is provided by the Epsten general civil litigation department, courtesy of its supervising attorney, Rian W. Jones. Rian has over 29 years of experience as a litigator and has tried over 50 Superior Court jury trials.

Results achieved in any given case depend upon the exact facts and circumstances of that case. Epsten cannot guarantee a specific result in any legal matter. The results discussed in this advertisement are dependent on the facts of the cases, and those results will differ if based on different facts. View our entire disclaimer.

Collecting a Judgment: Alternatives

By: Debora M. Zumwalt, Esq.

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Record an Abstract of Judgment

This converts the judgment into a lien on all real property then owned or later acquired by the judgment debtor. The lien is valid for ten years and can be renewed for additional ten year terms.

Wage Garnishment

A wage garnishment requires the employer to withhold a maximum of 25% of an employee’s wages, and pay that money to the County Marshal, who in turn pays the association. The association must locate the employer. The cost of a private investigator for this purpose starts at approximately $300.00.**

Levy on a Bank Account

This procedure is relatively simple and uses the services of the County Marshal’s office. However, the association has the burden of locating the bank account. A private investigator will charge approximately $300.00 to $500.00 to locate a bank account.

Rent Assignment

If the judgment debtor is receiving rents, it is necessary to file a motion with the court for an order that the rents be “assigned” to the association. Thereafter, all rents are paid directly to the association until the judgment is satisfied. The cost is approximately $1000.00 for this procedure.

Commission Assignment

If the judgment debtor earns commissions (i.e., real estate or insurance sales), it is necessary to file a motion with the court assigning those commissions to the association (identical to rent assignment). Thereafter, all commission earnings will be paid to the association.

Debtors Examination

This procedure involves serving the judgment debtor with a court order that he or she appear in court and answer questions, under oath, about income and assets. The cost is approximately $1000.00, including the attorney’s time. If the debtor appears and truthfully answers questions it is possible to learn of virtually everything that person earns and owns. Unfortunately, our experience has been that only about one out of five persons actually appear for the examination even though the court has ordered them to appear. The court will order an arrest warrant, but the process of compelling a non-appearing judgment debtor to appear can be lengthy and costly.

Locating Other Assets.

The judgment debtor may have other assets that can be taken to satisfy the judgment (e.g., automobile). The cost of an asset search starts at approximately $250.00 for the services of a private investigator.

Collection Agency

A final option is to retain the services of a collection agency to collect the judgment. Costs of such services can be as high as 50% of what is being sought. One such agency will add its fee to the judgment, and then share on a pro rata basis all funds as they are collected.

**Note: costs and fees are approximate only, and will vary depending on the complexity of the particular matter, and the amount of time actually expended.

Music & Movie Licenses: Common Interest Developments Must Obtain Music and Movie Licenses for Public Performances

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Many associations hold “movie-under-the-stars” nights. While these gatherings generally enhance the sense of community in an association, being hit with a copyright infringement lawsuit for failure to obtain a performance license can bring a quick end to the fun.

Copyright Law – Protected Work

The Federal Copyright Act (Title 17 of the U.S. Code) protects songwriters, music publishers, film producers, and the like, from unauthorized use of their copyrighted work. Federal copyright laws consider the creation and publication of music and film as “property” owned by the creator and publisher. If a work is copyrighted, the owner of the work has the exclusive right to publicly perform that work and give their permission for someone else to lawfully perform or display [1] the work in public. These laws directly affect community associations that play music or films in the clubhouse without obtaining a performance license before playing the work to the public in a community gathering.

What is a Public Performance?

In the performance licensing context, an association clubhouse or other common area may be considered a public place. While viewing a movie or listening to music in a private home does not require a license, to the extent a work is performed or displayed in a place “open to the public or at any place where a substantial number of persons outside the normal circle of family and its social acquaintances is gathered,” a public performance is deemed to exist (without regard to whether a fee is charged). (17 U.S.C. §101)[2] This definition extends to performances in semi-public places such as clubs and lodges (e.g., an association clubhouse), and presumably outdoor common areas. A conservative interpretation could extend this definition to association-sponsored events even if only residents are invited.

Examples of two cases demonstrate how copyright infringement liability can arise. In one case, an association held a dance, open to the public, with an orchestra and requested a $3.00 donation.[3] While the court did not opine on whether the clubhouse was a public place, it held an unauthorized public performance took place because the association invited the public and a fee was charged. The court’s opinion in this case indicates that if the association limited attendance to only members and did not request the donation, it may have avoided liability (liability might still have been found based on the number of guests, however).

In another case, a semi-private golf club played music in the dining room for 21 members and their guests.[4] The court held this transmission of music was a public performance because 21 guests constituted a substantial number of persons outside a normal circle of friends. This case indicates that an association clubhouse could be deemed a public place, and even when a small number of attendees gather in the clubhouse to listen to music, a license could be required.

Exemptions to License Requirement

Even if a performance is public, an association may be exempt from the license requirement if it can meet an exemption. The most obvious exception to the license requirement is if the performance is not “public.” In addition, the law exempts the playing of radio or television stations in a public place if the association does not charge a fee to enjoy the performance (the exemption does not include playing DVDs, CDs or iPod/mp3 playlists). The law also exempts performances that are not “transmitted,”[5] where there is no commercial advantage to the performers, organizers, or promoters, if there is also no admission charge. (17 U.S.C. §110(4)(A)) A common example of this exemption is a spontaneous sing-along at the clubhouse, but would probably not include an association-sponsored event with music playing, even without an admission charge.

Copyright Infringement Liability

Liability exists if, among other things, a work is copyrighted and the defendant publicly performed the work without first obtaining permission. The potential financial liability for copyright infringement is substantial. The Copyright Act provides for federal statutory damages of $750 – $30,000 for each inadvertent infringement, plus attorneys’ fees and costs. The damages substantially increase for intentional infringements (up to a $150,000).

Risk Management

Save for a few limited exceptions, the public performance of a work requires the permission of the owner through a performance license. To manage risk associated with federal copyright laws, community associations should either: (1) not allow the playing of music or movies in the common areas, or (2) obtain the necessary license from the appropriate performing rights organization (see Appendix). An association could also obtain an indemnity agreement from the performers, but this may not protect the association entirely, because joint and several liability is imposed on all parties who participate in the infringement.[6]

As the determination of whether a license is necessary is fact-specific, we recommend you contact your legal counsel for advice.

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Appendix: So, You Want to Have a Party…Now What?

If your party constitutes a public performance, the proper license(s) must be obtained from the relevant licensing entities. These entities ensure songwriters, music publishers and film producers are properly compensated when their work is played in public.

The three recognized Performing Rights Organizations (“PROs”) for music are:

  • The American Society of Composers, Authors and Publishers (“ASCAP”),
  • Broadcast Music, Inc. (“BMI”), and/or
  • The Society of European Stage Authors and Performers (“SESAC”).

Two of the major licensing firms for movies are:

  • Motion Picture Licensing Corporation, and/or
  • Criterion Pictures.
    • Each of these PROs maintains an expansive catalog of music and movies.
    • A license from one PRO does not allow the licensee to play a work from the catalog of the other two PROs – separate licenses must be obtained from whatever PRO protects the work.
    • Licensing fees are generally dependent on the number of times a work will be shown or played and the size of the audience.
    • PROs actively pursue license and copyright infringement violations.

Practically, the cost to obtain a license is likely much less than the cost of the risk to the association and directors and the cost to the association to litigate an infringement action and pay-out significant damages.

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Article adapted and reprinted with permission from Common Assessment Magazine, a publication of the Community Associations Institute San Diego Chapter, Summer 2013.

 


[1] “Display” is defined as “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images non-sequentially.” (17 U.S.C. §101)

“Perform” is broadly defined as “to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.” (17 U.S.C. §101)

[2] Public performance is further defined as transmitting or communicating a performance or display of a work to a place open to the public, or to the public by means of any device whether the public is capable of receiving the performance in the same place or separate places and at the same time or at different times. This somewhat convoluted definition means that a community with a central television channel that plays music or movies that can be viewed from individual owners’ homes may be considered a public performance. (17 U.S.C. §101)

[3] Hinton v. Mainlands of Tamarac 611 F.Supp.494 (S.D. Fla. 1985).

[4] Fermata International Melodies, Inc. v. Champions Golf Club, Inc. 712 F.Supp. 1257 (S.D. Tex. 1989).

[5] “Transmit” is defined as communicating a performance by any device or process where images or sounds are received beyond the place from which they are sent. (17 U.S.C. § 101(2))

[6]  Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).