Gershwin Publishing Corp. v. Columbia Artists Man., Inc., 606

Citation443 F.2d 1159
Decision Date24 May 1971
Docket NumberDocket 35260.,No. 606,606
PartiesGERSHWIN PUBLISHING CORPORATION, Plaintiff-Appellee, v. COLUMBIA ARTISTS MANAGEMENT, INC., Defendant-Appellant, and Community Concerts, Inc., Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Stephen Sayre Singer, New York City (Coudert Brothers and Carleton G. Eldridge, Jr., New York City, on the brief), for defendant-appellant.

Herman Finkelstein, New York City (Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison and Jay H. Topkis, and Cameron Clark, New York City, on the brief), for plaintiff-appellee.

Before FRIENDLY, Chief Judge, ANDERSON, Circuit Judge, and LEVET, District Judge.*

ANDERSON, Circuit Judge:

The American Society of Composers, Authors, and Publishers (ASCAP) brought this copyright infringement action against Columbia Artists Management, Inc. (CAMI) to determine whether CAMI is liable for and can be compelled to pay license fees when musical compositions in the ASCAP repertory are performed at concerts sponsored by local community concert associations promoted by CAMI. In this test litigation CAMI concedes that on January 9, 1965 concert artists managed by it performed "Bess, You Is My Woman Now" publicly for profit at a concert sponsored by the Port Washington Community Concert Association without the permission of plaintiff Gershwin Publishing Company, the copyright proprietor, and that the performing artists and local association are, therefore, liable for infringement under the Copyright Act, 17 U.S.C. §§ 1(e), 101 (1964). CAMI takes the position that its participation in that infringing performance did not render it jointly and severally liable for copyright infringement. The district court granted summary judgment for the plaintiff upon its finding that CAMI had caused the copyright infringement by "organizing, supervising and controlling" the local organization and by "knowingly participating" in its infringement.1 Gershwin Publishing Co. v. Columbia Artists Management, Inc., 312 F.Supp. 581 (S.D.N.Y.1970). We affirm.

The relevant facts and circumstances out of which the issue of law has arisen are the following.

CAMI engages in two business enterprises. One of them is acting as manager for concert artists, including booking them with professional impressarios. The other has to do with creating local organizations which produce the audiences for these artists in communities too small to support a commercial promoter. Its Community Concert Division, which is responsible for CAMI's second enterprise, organizes, nurtures and maintains hundreds of local non-profit organizations, called "Community Concert Associations," which sponsor annual concert series at which CAMI-managed artists appear.2

The formation and operation of the unincorporated associations follow the same pattern throughout the country. After it is determined that community demand is sufficient to support at least three concerts each season, a CAMI field representative contacts local citizens and engineers the formation of an association.3 As each concert season approaches, the field representative reviews with association officers a proposed budget, assists their tentative selection of artists, and helps to plan and carry through a one-week membership campaign4 during which memberships entitling the purchaser to attend the concert series are sold to the public. With local officials he also compiles a report of the campaign's proceeds, and prepares the actual budget and the artists' contracts. CAMI's involvement with the Port Washington association followed this pattern in 1964.

CAMI is compensated for its "audience creation" in two ways. Artists performing at community concerts, whether managed by CAMI or not, pay a "differential," which may amount to as much as twenty-five per cent of their gross fee, for services rendered by CAMI in the formation and direction of local associations. In addition artists managed by CAMI pay it a management charge of fifteen per cent of the artist's fee after deducting the "differential."5 CAMI therefore makes money through the reimbursement of its expenses, plus a percentage for profit for the nurturing of local associations; and artists who perform before the association's audiences pay a commission to CAMI for management.

Once an artist's community concert season has been so arranged, CAMI's "program girl" contacts him and obtains the titles of the musical compositions to be performed that season. CAMI then commissions the printing of concert programs, with its name prominently displayed on the cover, and sells them to the local associations on the artist's tour. CAMI stipulated that it deliberately made no effort to obtain copyright clearance for musical compositions included in the programs and performed at community concerts. Such clearance was, in its view, unnecessary because it claims no responsibility for any infringement which might occur.

Section 1(e) of the Copyright Act bestows upon the copyright proprietor "the exclusive right * * * to perform the copyrighted work publicly for profit," an interest which is protected by § 101 of the Act which holds accountable "any person who shall infringe the copyright." Although the Act does not specifically delineate what kind or degree of participation in an infringement is actionable,6 it has long been held that one may be liable for copyright infringement even though he has not himself performed the protected composition.7 For example, a person who has promoted or induced the infringing acts of the performer has been held jointly and severally liable as a "vicarious" infringer, even though he has no actual knowledge that copyright monopoly is being impaired. Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d 304 (2 Cir. 1963); Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F.2d 354 (7 Cir. 1929); see Study No. 25, Latman & Tager, "Liability of Innocent Infringers of Copyrights," prepared for the Subcomm. on Patents, Trademarks and Copyrights of the Senate Comm. on the Judiciary, 86th Cong., 1st Sess. 145-46 (1958). Although vicarious liability was initially predicated upon the agency doctrine of respondeat superior, see, e. g., M. Witmark & Sons v. Calloway, 22 F.2d 412, 414 (E.D. Tenn. 1927), this court recently held that even in the absence of an employer-employee relationship one may be vicariously liable if he has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities. Shapiro, Bernstein & Co., Inc. v. H. L. Green Co., s...

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