Beaumont Tashjian Law Blog

Friday, May 31, 2019

Movie and Music Nights - Ensuring Everyone Enjoys Summer Community Events

By: Brittany Ketchum. Esq.

The social event of the summer is about to begin. You take a deep breath, inhaling the scents of fresh cut grass and barbecue wafting through the air, and hope all your hard work will culminate with a successful community event. Instead of fretting over potential complaints, injuries or lawsuits, the prudent manager will have taken reasonable steps to help protect the association from liability, while guaranteeing a good time for residents and their guests.

 

Events involving movies or music (e.g., concerts, musicals, theater acts or other similar performances) expose associations to copyright infringement liability. Movies and musical works are intellectual property protected by federal law; specifically, the U.S. Copyright Act. To avoid copyright infringement, associations must have permission to perform copyrighted works publicly. The Copyright Act defines “publicly” to include performance of a copyrighted work at a place “open to the public or gathering of substantial number of persons outside of a normal circle of a family and its social acquaintances.” (17 USC Section 101.) Courts have found associations and other similar “private” clubs liable for copyright infringement. (Hinton v. Mainlands of Tamarac, 611 F. Supp. 494 (SD Fla. 1985); Fermata Int’l Melodies, Inc. v. Champions Golf Club, Inc., 712 F. Supp. 1257 (S.D.Texas 1989).) Courts have also held that association board meetings are “public” forums. (Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468 (2000).) Therefore, even if your association is not open to the public, your event may still be deemed “public” under the Copyright Act. To protect your association from liability, consult the association’s legal counsel regarding this difficult issue. Otherwise, a license may be obtained from a copyright licensing agency for permission to perform the specific copyrighted work your association intends to perform or display. To further protect the association from liability, keep your event private. This will help minimize exposure to liability, such as discrimination and accessibility related claims under the Americans with Disabilities Act. Attendees should only be association members, residents and their guests. Admission to the event should be free and alcohol should not be sold. If alcohol is served, ensure the association purchases and maintains appropriate insurance and consider hiring a third party vendor that specializes in hospitality events to best protect the association and management. Such vendors often implement best practices (e.g., wristbands affixed by association personnel upon display of valid driver’s license proving the person is 21or older, procedures to cut off anyone who appears to be overserved, serving only beer and wine, use of two free drink tickets per person upon registration, etc.). Ensuring everyone has a good time requires managing expectations. Residents and their guests should know what to expect at the event, and conduct during a community event in the common area can and should be regulated via rules and regulations. Appropriate topics for rules include prohibiting outside alcohol, smoking (tobacco and marijuana) and pets. Of course, service animals are not considered pets and should not be banned from community events, provided the service animal is a reasonable accommodation to afford a person with a disability the equal opportunity to enjoy the event. Rules should also address whether dancing will be permitted and, if so, where dancing is allowed. Boards should also consider addressing quiet hours in the rules; specifically, event attendees should be required to leave by the start of quiet hours to avoid nuisance complaints. Notice of the association’s existing rules should be provided along with notice of the event. In addition, consider posting signage at the event to emphasize pertinent rules. If such rules are not already in place, the board should consider adopting rules in anticipation of the event. The board must formally adopt such rules following the 28-day member comment procedures described in Civil Code §§ 4340 et seq. During the event, rules must be enforced. Consider enlisting the help of security guards to patrol the event. Gate check attendants ensure only residents and their guests are permitted entry and persons do not bring contraband items, such as outside alcohol. After the event, discipline may be imposed against members whose residents or guests violate duly promulgated rules or cause damage to the common area. Depending on the association’s governing documents, discipline may include levying monetary penalties (if the board has adopted a fine schedule per Civil Code Section 5850)and/or suspension of membership privileges (e.g., use of common area facilities, voting rights, etc.). Before any fine or reimbursement assessment may be imposed, and before membership rights may be suspended, the member must be provided notice and an opportunity to be heard before the board as required by Civil Code § 5855. Last, but certainly not least, the association’s insurance carrier must be consulted to confirm that the event and potential accidents will be covered by the association’s commercial general liability policy.


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