TWENTIETH CENTURY MUSIC CORP. Et Al. v. AIKEN

422 U.S. 151, 95 S. Ct. 2040, 45 L. Ed. 2d 84, 1975 U.S. LEXIS 156, 186 U.S.P.Q. (BNA) 65

• Court: Supreme Court of the United States
• Decided: June 17, 1975
• Docket: 74-452
• Status: Published

Opinions

Me. Justice Stewaet

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.

I

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

II

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 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

The limited scope of the copyright holder’s statutory monopoly, like 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

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 reconvert the broadcast 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 place. Nor can a performance, in our judgment, be deemed private because each listener may enjoy it alone in the privacy of his home. Radio broadcasting is intended to, and in fact does, reach a very much larger number of the public at the moment of the rendition than any other medium of performance. The artist is consciously addressing a great, though unseen and widely scattered, audience, and is therefore participating in a public performance.” Jerome H. Remick & Co. v. American Automobile Accessories Co., 5 F. 2d 411, 411-412.

See also M. Witmark & Sons v. L. Bamberger & Co., 291 F. 776 (NJ); Jerome H. Remick & Co. v. General Electric Co., 4 F. 2d 160 (SDNY); Jerome H. Remick & Co. v. General Electric Co., 16 F. 2d 829 (SDNY); Associated Music Publishers, Inc. v. Debs Memorial Radio Fund, 141 F. 2d 852 (CA2). Cf. Chappell & Co., Ltd. v. Associated Radio Co. of Australia, Ltd., [1925] Vict. L. R. 350; Messager v. British Broadcasting Co., Ltd., [1927] 2 K. B. 543, rev’d on other grounds, [1928] 1 K. B. 660, aff’d, [1929] A. C. 151. See generally Caldwell, The Broadcasting of Copyrighted Works, 1 J. Air L. 584 (1930); Note, 75 U. Pa. L. Rev. 549 (1927); Note, 39 Harv. L. Rev. 269 (1925).

If, by analogy to a live performance in a concert hall or cabaret, a radio station “performs” a musical composition when it broadcasts it, the same analogy would seem to require the conclusion that those who listen to the broadcast through the use of radio receivers do not perform the composition. And that is exactly what the early federal cases held. “Certainly those who listen do not perform, and therefore do not infringe.” Jerome H. Remick & Co. v. General Electric Co., supra, at 829. “One who manually or by human agency merely actuates electrical instrumentalities, whereby inaudible elements that are omnipresent in the air are made audible to persons who are within hearing, does not 'perform’ within the meaning of the Copyright Law.” Buck v. Debaum, 40 F. 2d 734, 735 (SD Cal. 1929).

Such was the state of the law when this Court in 1931 decided Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191. In that case the Court was called upon to answer the following question certified by the Court of Appeals for the Eighth Circuit: “Do the acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set and loud speakers installed in his hotel and under his control and for the entertainment of his guests, the hearing of a copyrighted musical composition which has been broadcast from a radio transmitting station, constitute a performance of such composition within the meaning of 17 USC Sec. 1 (e) ?” The Court answered the certified question in the affirmative. In stating the facts of the case, however, the Court’s opinion made clear that the broadcaster of the musical composition was not licensed to perform it, and at least twice in the course of its opinion the Court indicated that the answer to the certified question might have been different if the broadcast itself had been authorized by the copyright holder.¹⁰

We may assume for present purposes that the JewelLaSalle decision retains authoritative force in a factual situation like that in which it arose.¹¹ But, as the Court of Appeals in this case perceived, this Court has in two recent decisions explicitly disavowed the view that the reception of an electronic broadcast can constitute a performance, when the broadcaster himself is licensed to perform the copyrighted material that he broadcasts. Fortnightly Corp. v. United Artists, 392 U. S. 390; Teleprompter Corp. v. CBS, 415 U. S. 394.

The language of the Court’s opinion in the Fortnightly case could hardly be more explicitly dispositive of the question now before us:

“The television broadcaster in one sense does less than the exhibitor of a motion picture or stage play; he supplies his audience not with visible images but only with electronic signals. The viewer conversely does more than a member of a theater audience; he provides the equipment to convert electronic signals into audible sound and visible images. Despite these deviations from the conventional situation contemplated by the framers of the Copyright Act, broadcasters have been judicially treated as exhibitors, and viewers as members of a theater audience. Broadcasters perform. Viewers do not perform. Thus, while both broadcaster and viewer play crucial roles in the total television process, a line is drawn between them. One is treated as active performer; the other, as passive beneficiary.” 392 U. S., at 398-399 (footnotes omitted).

The Fortnightly and Teleprompter cases, to be sure, involved television, not radio, and the copyrighted materials there in issue were literary and dramatic works, not musical compositions. But, as the Court of Appeals correctly observed: “[I]f Fortnightly, with its elaborate CATV plant and Teleprompter with its even more sophisticated and extended technological and programming facilities were not ‘performing,’ then logic dictates that no ‘performance’ resulted when the [respondent] merely activated his restaurant radio.” 500 F. 2d, at 137.

To hold in this case that the respondent Aiken “performed” the petitioners’ copyrighted works would thus require us to overrule two very recent decisions of this Court. But such a holding would more than offend the principles of stare decisis; it would result in a regime of copyright law that would be both wholly unenforceable and highly inequitable.

The practical unenforceability of a ruling that all of those in Aiken’s position are copyright infringers is self-evident. One has only to consider the countless business establishments in this country with radio or television sets on their premises — bars, beauty shops, cafeterias, car washes, dentists’ offices, and drive-ins — to realize the total futility of any evenhanded effort on the part of copyright holders to license even a substantial percentage of them.¹²

And a ruling that a radio listener “performs” every broadcast that he receives would be highly inequitable for two distinct reasons. First, a person in Aiken’s position would have no sure way of protecting himself from liability for copyright infringement except by keeping his radio set turned off. For even if he secured a license from ASCAP, he would have no way of either foreseeing or controlling the broadcast of compositions whose copyright was held by someone else.¹³ Secondly, to hold that all in Aiken’s position “performed” these musical compositions would be to authorize the sale of an untold number of licenses for what is basically a single public rendition of a copyrighted work. The exaction of such multiple tribute would go far beyond what is required for the economic protection of copyright owners,¹⁴ and would be wholly at odds with the balanced congressional purpose behind 17 U. S. C. § 1 (e):

“The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition, and it has been a serious and a difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests.” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).

For the reasons stated in this opinion, the judgment of the Court of Appeals is affirmed.

It is so ordered.

1 For a discussion of ASCAP, see K-91, Inc. v. Gershwin Publishing Corp., 372 F. 2d 1 (CA9).

ASCAP’s license agreement with the Pittsburgh broadcasting station contained, as is customary, 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, any 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.”

2 The Constitution gives Congress the power: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U. S. Const., Art. I, § 8, cl. 8. See, e. g., Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 58; Trade-Mark Cases, 100 U. S. 82, 94.

3 Title 17 TJ. S. C. § 1 provides in part:

“Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right:

“(a) To print, reprint, publish, copy, and vend the copyrighted work;

“(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a nondramatic work; to convert it into a novel or other nondramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art;

“(c) To deliver, authorize the delivery of, read, or present the copyrighted work in public for profit if it be a lecture, sermon, address or similar production, or other nondramatic literary work; to make or procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced, or reproduced; and to play or perform it in public for profit, and to exhibit, represent, produce, or reproduce it in any manner or by any method whatsoever. The damages for the infringement by broadcast of any work referred to in this subsection shall not exceed the sum of $100 where the infringing broadcaster shows that he was not

aware that he was infringing and that such infringement could not have been reasonably foreseen; and

“(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce or reproduce it in any manner or by any method whatsoever; and

"(e) To perform the copyrighted work publicly for profit if it be a musical composition; and for the purpose of public performance for profit, and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced . . . .”

4 Cf. Wall v. Taylor, 11 Q. B. D. 102, 106-107 (1883) (Brett, M. R.): “Singing for one’s own gratification without intending thereby to represent anything, or to amuse any one else, would not, I think, be either a representation or performance, according to the ordinary meaning of those terms, nor would the fact of some other person being in the room at the time of such singing make it so ....”

5 See 1 M. Nimmer, Copyright §5 (1974).

6 Lord Mansfield’s statement of the problem almost 200 years ago in Sayre v. Moore, quoted in a footnote to Cary v. Longman, 1 East *358, 362 n. (b), 102 Eng. Rep. 138, 140 n. (b) (1801), bears repeating:

“[W]e must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded.”

7 In Fortnightly Corp. v. United Artists, 392 U. S. 390, the Court stated:

“[0]ur inquiry cannot be limited to ordinary meaning and legislative history, for this is a statute that was drafted long before the development of the electronic phenomena with which we deal here. In 1909 radio itself was in its infancy, and television had not been invented. We must read the statutory language of 60 years ago in the light of drastic technological change.” Id., at 395-396 (footnotes omitted).

8 See n. 3, supra.

9 Station KDKA, established in Pittsburgh in 1920, is said to have been the first commercial radio broadcasting station in the world. See Buck v. Jewell-LaSalle Realty Co., 283 U. S. 191, 196 n. 2.

10 “[W]e have no occasion to determine under what circumstances a broadcaster will be held to be a performer, or the effect upon others of his paying a license fee.” 283 U. S., at 198 (emphasis added). See also id., at 199 n. 5.

11 The decision in J ewell-LaSalle might be supported by a concept akin to that of contributory infringement, even though there was no relationship between the broadcaster and the hotel company and, therefore, technically no question of actual contributory infringement in that case. Id., at 197 n. 4.

12 The Court of Appeals observed that ASCAP now has license agreements with some 5,150 business establishments in the whole country, 500 F. 2d 127, 129, noting that these include “firms which employ on premises sources for music such as tape recorders and live entertainment.” Id., at 129 n. 4. As a matter of so-called “policy” or “practice,” we are told, ASCAP has not even tried to exact licensing agreements from commercial establishments whose radios have only a single speaker.

13 This inequity, in the context of the decision in Buck v. JewellLaSalle Realty Co., 283 U. S. 191, was pointed out by Professor Zechariah Chafee, Jr., 30 years ago:

“A rule which is very hard for laymen to apply so as to keep clear of litigation was established by the La Salle Hotel case. The hotel was heavily liable if it rebroadcast unlicensed music, but how could it protect itself? Must it maintain a monitor always on the job to sit with a list before him pages long showing what pieces are licensed and turn off the master set the instant an unlicensed piece comes from the broadcasting station? The dilemma thus created by the Copyright Act was mitigated for a time by the machinery of ASCAP, which was a device entirely outside the statute. The hotel could obtain a blanket license from ASCAP and thus be pretty sure of safety about all the music which came through its master set. . . . [But if] any composer outside of ASCAP has his music broadcast, what is the hotel to do ? Besides getting an ASCAP license, must the hotel bargain separately with every independent composer on the chance that his music may come through to the hotel patrons?

“Such divergences from the ideal . . . are likely to be corrected . . . .” Reflections on the Law of Copyright: I, 45 Col. L. Rev. 503, 528-529.

14 The petitioners have not demonstrated that they cannot receive from a broadcaster adequate royalties based upon the total size of the broadcaster’s audience. On the contrary, the respondent points out that generally copyright holders can and do receive royalties in proportion to advertising revenues of licensed broadcasters, and a broadcaster’s advertising revenues reflect the total number of its listeners, including those who listen to the broadcasts in public business establishments.