Twentieth Century Music Corp. v. Aiken
| Decision Date | 21 June 1974 |
| Docket Number | No. 73-1469,73-1469 |
| Citation | 500 F.2d 127 |
| Parties | TWENTIETH CENTURY MUSIC CORPORATION and Mary M. Bourne, Appellees, v. George AIKEN, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
William M. Wycoff, Thorp, Reed & Armstrong, Pittsburgh, Pa., Herman Finkelstein, Gen. Counsel, Bernard Korman, New York City, for appellees.
Thomas N. Dowd, William S. D'Amico, Washington, D.C., Stephen Israel, Pittsburgh, Pa., for appellant.
Melville B. Nimmer, Kaplan, Livingston, Goodwin, Berkowitz & Selvin, Beverly Hills, Cal., for amicus curiae Muzak Corp.
Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.
We are concerned here with an interpretation of the Copyright Act, 17 U.S.C. 1. 1 The District Court for the Western District of Pennsylvania held 2 that defendant infringed two copyrighted musical compositions by performing them at defendant's restaurant publicly for profit.
The question presented for determination may be stated as: has defendant 'performed' the plaintiffs' copyrighted musical compositions within the meaning of the Copyright Act, 17 U.S.C. 1, when these compositions were made available to the defendant's patrons at his restaurant by the instrumentality of a radio and loud speakers?
The defendant George Aiken owns and operates a fast service food establishment in downtown Pittsburgh. Food is sold at retail for both consumption on the premises and for 'take-out' purposes. The premises can accommodate about 40 patrons at its counters and in its booths. A single radio connection to four separate loud speakers furnishes background music through normal radio programming. The speakers are located in the ceiling of the public and non-public areas of the establishment and the defendant's practice (in order to have normal radio broadcasts heard throughout the restaurant during business hours) is to switch the radio on at the opening of each business day. Whatever is broadcast over the radio, therefore becomes audible in the restaurant, as no effort is made to exclude any portion of the broadcasts, i.e., news, music, commercials, etc.
In accordance with the practice noted above, on March 11, 1972, the radio in the defendant's premises having been turned on, two copyrighted musical compositions were heard by at least six patrons in the restaurant. 3 On that date, radio station WKJF-FM broadcast the two musical selections which were heard at defendant's premises. WKJF-FM at that time was a licensee of The American Society of Composers, Authors and Publishers, (ASCAP) and therefore licensed to broadcast the two songs which formed the basis of the asserted copyright violation. The ASCAP license contained the following provision:
'Nothing herein contained shall be construed as authorizing Licensee (WKJF-FM) to grant to others any right to reproduce or perform publicly for profit by any means, method or process whatsoever of the musical compositions licensed hereunder or as authorizing any receiver of any radio broadcast to perform publicly or reproduce the same for profit, by any means, method or process whatsoever.'
Over the years ASCAP has licensed commercial establishments similar to George Aiken's when the establishment utilizes a radio and more than one speaker. As a matter of policy, however, ASCAP has not required a license where the commercial establishment has limited itself to a radio and one speaker. Presently ASCAP has license agreements with 5,150 businesses. 4 These agreements result in annual royalty payments of $246,000.
Muzak Corporation filed a brief amicus curiae in this appeal. Muzak, in its brief, adopted that portion of the District Court's opinion which sets forth Muzak's interest as follows: Muzak emphasizes that the decision here will 'in significant measure influence the price the public pays for background music whatever the source.'
The present plaintiffs complain that when George Aiken tuned his restaurant radio to WKJF-FM which was broadcasting plaintiffs' musical compositions, Aiken by that means had publicly performed these compositions for profit within the meaning of the Copyright Act 17 U.S.C. 1 et seq. The District Court agreed with the plaintiffs' contentions, and although it did not grant the injunction sought, it did enter judgment on March 26, 1973 in favor of each plaintiff for $250. It is that order from which the defendant appeals.
Our task here is to give content and meaning to the term 'perform' within the context of the Copyright Act. As Mr. Justice Stewart wrote in Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968):
'The Copyright Act does not give a copyright 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
392 U.S. at 393-395, 88 S.Ct. at 2086. 6
In each instance, the answer to the question as to whether an infringement occurred depends on whether or not there was a 'performance' within the meaning of the Act, since without a 'performance' there can be no infringement. The issue was joined here by the plaintiffs asserting that Aiken 'performed' the two musical pieces when he switched on his radio (with four loud speakers attached) and tuned to the station which was playing these compositions. If that act constituted a 'performance', then the defendant Aiken infringed the two copyrights and we would then be obliged to affirm the judgment of the District Court. On the other hand, if by the act of tuning to WKJF-FM George Aiken did not 'perform', then no infringement occurred and the District Court erred in its opinion and judgment. 7
The District Court recognized, as do we, that the Act itself does not define 'performance'. In construing that term the District Court looked primarily to the conflicting tests articulated by the Supreme Court in Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191, 51 S.Ct. 410, 75 L.Ed. 971 (1931) () and to Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed.2d 1176 (1968), invoked by the defendant. 8
Our analysis similarly begins with an examination of Jewell-LaSalle and Fortnightly. However, we need not halt our discussion with Fortnightly as the District Court was obliged to do. (See fn. 8 supra), as we can now draw upon the teaching of Teleprompter Corp. et al. v. Columbia Broadcasting System, Inc., supra, as it affects the issue before us.
Although Herbert v. Shanley Co., 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511 (1917) did not involve a radiocast and obviously not a telecast, it did set the stage for the later copyright cases concerned with 'performance'. The defendant hotel in Herbert employed an orchestra for the entertainment of its guests. During dinner, a copyrighted composition was played. It was held that this was a performance for profit within the meaning of the Copyright Act.
Thereafter in 1925 the unauthorized broadcasting of a copyrighted musical composition by a radio station was held to constitute an infringement of the statutory copyright. Jerome H. Remick & Co. v. American Automobile Accessories Co., 5 F.2d 411 (6th Cir. 1925). 9
In the following year (1926), the concept of 'performance' was further refined in Jerome H. Remick & Co. v. General Electric Co., S.D.N.Y., 16 F.2d 829. The District Court in that case posed the question as follows:
'. . . Whether one who by means of the microphones 'picks up' another's unauthorized performance of a copyrighted musical composition and transmits it by radio from a broadcasting station maintained and operated to stimulate the sale of radio product is liable for infringement of copyright.'
The District Court found that the only distinction between the defendant's position in General Electric and the defendant's position in American Automobile Accessories was the fact that the General Electric Co. did not participate in the rendition of the musical production except by affording to others the opportunity to hear it. The Court held that the defendant had infringed the plaintiff's copyright stating:
'. . . If he (the defendant) broadcasts without authority from the owner of the copyright a private rehearsal of a copyrighted production, thus converting the private rendition into a public performance for profit, he contributes to the resultant infringement.' 10
Buck v. Debaum, 40 F.2d 734 (S.D.Cal.1929) followed the second Remick case. Debaum owned a cafe in Los Angeles. He had installed a radio receiving set through which he received various programs from broadcasting radio stations for the benefit of his patrons. He 'tuned in' the cafe radio and in so doing, the copyrighted musical composition 'Indian Love Call' was heard in the restaurant. The question there, was whether Debaum had been guilty of infringement of the copyrighted...
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...adequate return for the value of his composition while at the same time protecting the public from oppressive monopolies. Pp. 154-164. 3 Cir., 500 F.2d 127, Simon H. Rifkind, New York City, for petitioners. Harold David Cohen, Washington, D.C., for respondent. Mr. Justice STEWART delivered ......
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