Although fair use provides a statutory exception to any of a copyright holder’s exclusive rights, Section 110(4) provides an exception to only the performance right of a copyright holder. The Section 110(4) exception in the Copyright Act allows public performances to take place without payment so long as the performance is done without the intent of making commercial gain. In addition, the performers, promoters, and organizers must not be compensated beyond expenses.
The statute does not require the performance to be free if the proceeds are used exclusively for educational, religious, or charitable purposes. If none of these purposes are available, the performance must be free for the audience. Examples of these public performances include eligible benefit concerts, school performances, and religious festivities.