422 U.S. 151 (1975), 74-452, Twentieth Century Music Corp. v. Aiken

Docket Nº:No. 74-452
Citation:422 U.S. 151, 95 S.Ct. 2040, 45 L.Ed.2d 84
Party Name:Twentieth Century Music Corp. v. Aiken
Case Date:June 17, 1975
Court:United States Supreme Court

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422 U.S. 151 (1975)

95 S.Ct. 2040, 45 L.Ed.2d 84

Twentieth Century Music Corp.



No. 74-452

United States Supreme Court

June 17, 1975

Argued April 21, 1975




Petitioners' copyrighted songs were received on the radio in respondent's food shop from a local broadcasting station, which was licensed by the American Society of Composers, Authors and Publishers to perform the songs, but respondent had no such license. Petitioners then sued respondent for copyright infringement. The District Court granted awards, but the Court of Appeals reversed.

Held: Respondent did not infringe upon petitioners' exclusive right, under the Copyright Act, "[t]o perform the copyrighted work publicly for profit," since the radio reception did not constitute a "performance" of the copyrighted songs. Fortnightly Corp. v. United Artists, 392 U.S. 390; Teleprompter Corp. v. CBS, 415 U.S. 394. To hold that respondent "performed" the copyrighted works would obviously result in a wholly [95 S.Ct. 2042] unenforceable regime of copyright law, and would also be highly inequitable, since (short of keeping his radio turned off) one in respondent's position would be unable to protect himself from infringement liability. Such a ruling, moreover, would authorize the sale of an untold number of licenses for what is basically a single rendition of a copyrighted work, thus conflicting with the balanced purpose of the Copyright Act of assuring the composer an adequate return for the value of his composition while, at the same time, protecting the public from oppressive monopolies. Pp. 154-16.

500 F.2d 127, affirmed.

STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed an opinion concurring in the result, post, p. 164. BURGER, C.J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 167.

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STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

The question presented by this case is whether the reception of a radio broadcast of a copyrighted musical composition can constitute copyright infringement when the copyright owner has licensed the broadcaster to perform the composition publicly for profit.


The respondent George Aiken owns and operates a small fast service food shop in downtown Pittsburgh, Pa. known as "George Aiken's Chicken." Some customers carry out the food they purchase, while others remain and eat at counters or booths. Usually the "carry-out" customers are in the restaurant for less than five minutes, and those who eat there seldom remain longer than 10 or 15 minutes.

A radio with outlets to four speakers in the ceiling receives broadcasts of music and other normal radio programing at the restaurant. Aiken usually turns on the radio each morning at the start of business. Music, news, entertainment, and commercial advertising broadcast by radio stations are thus heard by Aiken, his employees, and his customers during the hours that the establishment is open for business.

On March 11, 1972, broadcasts of two copyrighted musical compositions were received on the radio from a

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local station while several customers were in Aiken's establishment. Petitioner Twentieth Century Music Corp. owns the copyright on one of these songs, "The More I See You"; petitioner Mary Bourne the copyright on the other, "Me and My Shadow." Petitioners are members of the American Society of Composers, Authors and Publishers (ASCAP), an association that licenses the performing rights of its members to their copyrighted works. The station that broadcast the petitioners' songs was licensed by ASCAP to broadcast them.1 Aiken, however, did not hold a license from ASCAP.

The petitioners sued Aiken in the United States District Court for the Western District of Pennsylvania to recover for copyright infringement. Their complaint alleged that the radio reception in Aiken's restaurant of the licensed broadcasts infringed their exclusive rights to "perform" their copyrighted works in public for profit. The District Judge agreed, and granted statutory monetary awards for each infringement. 356 F.Supp. 271. The United States Court of Appeals for [95 S.Ct. 2043] the Third Circuit reversed that judgment, 500 F.2d 127, holding that the petitioners' claims against the respondent were foreclosed by this Court's decisions in Fortnightly Corp. v. United Artists, 392 U.S. 390, and Teleprompter Corp. v.

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CBS, 415 U.S. 394. We granted certiorari. 419 U.S. 1067.


The Copyright Act of 1909, 35 Stat. 1075, as amended, 17 U.S.C. § 1 et seq.,2 gives to a copyright holder a monopoly limited to specified "exclusive" rights in his copyrighted works.3 As the Court explained in Fortnightly Corp. v. United Artists, supra:

The Copyright Act does not give a copyright

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holder control over all uses of his copyrighted work. Instead, § 1 of the Act enumerates several "rights" that are made "exclusive" to the holder of the copyright. If a person, without authorization from the copyright holder, puts a copyrighted work to a use within the scope of one of these "exclusive rights," he infringes the copyright. If he puts the work to a use not enumerated in § 1, he does not infringe.

392 U.S. at 393-395.

Accordingly, if an unlicensed use of a copyrighted work does not conflict with an "exclusive" right conferred by the statute, it is no infringement of the holder's rights. No license is required by the Copyright Act, for example, to sing a copyrighted lyric in the shower.4

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The limited scope of the copyright holder's statutory monopoly, like [95 S.Ct. 2044] the limited copyright duration required by the Constitution,5 reflects a balance of competing claims upon the public interest: creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.6 The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. "The sole interest of the United States and the primary object in conferring the monopoly," this Court has said, "lie in the general benefits derived by the public from the labors of authors." Fox Film Corp. v. Doyal, 286 U.S. 123, 127. See Kendall v. Winsor, 21 How. 322, 327-328; Grant v. Raymond, 6 Pet. 218, 241-242. When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.7

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The precise statutory issue in the present case is whether Aiken infringed upon the petitioners' exclusive right, under the Copyright Act of 1909, 17 U.S.C. § 1(e), "[t]o perform the copyrighted work publicly for profit."8 We may assume that the radio reception of the musical compositions in Aiken's restaurant occurred "publicly for profit." See Herbert v. Shanley Co., 242 U.S. 591. The dispositive question, therefore, is whether this radio reception constituted a "performance" of the copyrighted works.

When this statutory provision was enacted in 1909, its purpose was to prohibit unauthorized performances of copyrighted musical compositions in such public places as concert halls, theaters, restaurants, and cabarets. See H.R.Rep. No. 2222, 60th Cong., 2d Sess. (1909). An orchestra or individual instrumentalist or singer who performs a copyrighted musical composition in such a public place without a license is thus clearly an infringer under the statute. The entrepreneur who sponsors such a public performance for profit is also an infringer -- direct or contributory. See generally 1 & 2 M. Nimmer, Copyright §§ 102, 134 (1974). But it was never contemplated that the members of the audience who heard the composition would themselves also be simultaneously "performing," and thus also guilty of infringement. This much is common ground.

With the advent of commercial radio, a broadcast musical composition could be heard instantaneously by an enormous audience of distant and separate persons operating their radio receiving sets to [95 S.Ct. 2045] reconvert the broadcast

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to audible form.9 Although Congress did not revise the statutory language, copyright law was quick to adapt to prevent the exploitation of protected works through the new electronic technology. In short, it was soon established in the federal courts that the broadcast of a copyrighted musical composition by a commercial radio station was a public performance of that composition for profit -- and thus an infringement of the copyright if not licensed. In one of the earliest cases so holding, the Court of Appeals for the Sixth Circuit said:

While the fact that the radio was not developed at the time the Copyright Act . . . was enacted may raise some question as to whether it properly comes within the purview of the statute, it is not, by that fact alone, excluded from the statute. In other words, the statute may be applied to new situations not anticipated by Congress, if, fairly construed, such situations come within its intent and meaning. . . . While statutes should not be stretched to apply to new situations not fairly within their scope, they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries.

* * * *

A performance, in our judgment, is no less public because the listeners are unable to communicate with one another, or are not assembled within an inclosure, or gathered together in some open stadium or park or other public...

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