443 F.2d 1159 (2nd Cir. 1971), 606, Gershwin Pub. Corp. v. Columbia Artists Management, Inc.

Docket Nº:606, 35260.
Citation:443 F.2d 1159, 170 U.S.P.Q. 182
Party Name:GERSHWIN PUBLISHING CORPORATION, Plaintiff-Appellee, v. COLUMBIA ARTISTS MANAGEMENT, INC., Defendant-Appellant, and Community Concerts, Inc., Defendant.
Case Date:May 24, 1971
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1159

443 F.2d 1159 (2nd Cir. 1971)

170 U.S.P.Q. 182



COLUMBIA ARTISTS MANAGEMENT, INC., Defendant-Appellant, and Community Concerts, Inc., Defendant.

No. 606, 35260.

United States Court of Appeals, Second Circuit.

May 24, 1971

Argued April 19, 1971.

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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,

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which is responsible for CAMI's second enterprise, organizes, nurtures and maintains hundreds of local nonprofit 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...

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