1. Section 1 of the Sherman Act was violated when individual
distributors of copyrighted feature motion picture films for
television exhibition engaged in block booking such films to
television broadcasting stations -- i.e.,
license or sale of the right to exhibit one or more feature films
upon acceptance by each station of a package or block of films
containing one or more unwanted or inferior films -- even in the
absence of any combination or conspiracy between the distributors
and any monopolization or attempt to monopolize. Pp. 371 U. S. 39
371 U. S.
2. The fact that, on the records in these cases, each defendant
was found to have entered into a comparatively small number of
illegal contracts did not make it improper for the District Court
to grant injunctive relief. Pp. 371 U. S.
3. The block booking engaged in by one of the defendants cannot
be justified or excused by its plea of business necessity, since
the thrust of the antitrust laws cannot be avoided merely by
claiming that the otherwise illegal conduct was compelled by
contractual obligations to a third party. Pp. 371 U. S.
4. The decrees entered by the District Court should be amended
so as to:
(a) Require the defendants to price films individually and offer
them on a picture by picture basis. Pp. 371 U. S.
(b) Prohibit differentials in price between a film when sold
individually and when sold as part of a package, except when such
price differentials are justified by relevant and legitimate cost
considerations. Pp. 371 U. S.
(c) Proscribe "temporary" refusals by a distributor to deal on
less than a block basis, except that a distributor may briefly
defer licensing or selling to a customer pending the expeditious
Page 371 U. S. 39
of bona fide
negotiations already being conducted with
a competing station on a proposal wherein the distributor has
simultaneously offered to license or sell films either individually
or in a package. P. 371 U. S.
, judgments vacated and causes remanded.
MR. JUSTICE GOLDBERG delivered the opinion of the Court.
These consolidated appeals present as a key question the
validity under § 1 of the Sherman Act [Footnote 1
] of block booking of copyrighted feature motion
pictures for television exhibition. We hold that the tying
agreements here are illegal, and in violation of the Act.
Page 371 U. S. 40
The United States brought separate civil antitrust actions in
the Southern District of New York in 1957 against six major
distributors of pre-1948 copyrighted motion picture feature films
for television exhibition, alleging that each defendant had engaged
in block booking in violation of § 1 of the Sherman Act. The
complaints asserted that the defendants had, in selling to
television stations, conditioned the license or sale of one or more
feature films upon the acceptance by the station of a package or
block containing one or more unwanted or inferior films. No
combination or conspiracy among the distributors was alleged, nor
was any monopolization or attempt to monopolize under § 2 of the
Sherman Act averred. The sole claim of illegality rested on the
manner in which each defendant had marketed its product. The
successful pressure applied to television station customers to
accept inferior films along with desirable pictures was the
gravamen of the complaint.
After a lengthy consolidated trial, the district judge filed
exhaustive findings of fact, conclusions of law, and a carefully
reasoned opinion, 189 F.
, in which he found that the actions of the defendants
constituted violations of § 1 of the Sherman Act. The conclusional
finding of fact and law was that
". . . the several defendants have each, from time to time and
to the extent set forth in the specific findings of fact, licensed
or offered to license one or more feature films to television
stations on condition that the licensee also license one or more
other such feature films, and have, from time to time and to the
extent set forth in the specific findings of fact, refused,
expressly or impliedly, to license feature films to television
stations unless one or more other such feature films were accepted
by the licensee."
189 F. Supp. at 397-398.
Page 371 U. S. 41
The judge recognized that there was keen competition between the
defendant distributors, and therefore rested his conclusion solely
on the individual behavior of each in engaging in block booking. In
reaching his decision, he carefully considered the evidence
relating to each of the 68 licensing agreements that the Government
had contended involved block booking. He concluded that only 25 of
the contracts were illegally entered into. Nine of these belonged
to defendant C & C Super Corp., which had an admitted policy of
insisting on block booking that it sought to justify on special
Of the others, defendant Loew's, Incorporated, had in two
negotiations that resulted in licensing agreements declined to
furnish stations KWTV of Oklahoma City and WBRE of Wilkes-Barre
with individual film prices, and had refused their requests for
permission to select among the films in the groups. Loew's exacted
from KWTV a contract for the entire Loew's library of 723 films,
involving payments of $314,725.20. The WBRE agreement was for a
block of 100 films, payments to total $15,000.
Defendant Screen Gems, Inc., was also found to have block booked
two contracts, both with WTOP of Washington, D.C., one calling for
a package of 26 films and payments of $20,800 and the other for 52
films and payments of $40,000. The judge accepted the testimony of
station officials that they had requested the right to select films
and that their requests were refused.
Associated Artists Productions, Inc., negotiated four contracts
that were found to be block booked. Station WTOP was to pay
$118,800 for the license of 99 pictures, which were divided into
three groups of 33 films, based on differences in quality. To get
"Treasure of the Sierra Madre," "Casablanca," "Johnny Belinda,"
"Sergeant York," and "The Man Who Came to Dinner," among others,
WTOP also had to take such films as "Nancy Drew
Page 371 U. S. 42
Troubleshooter," "Tugboat Annie Sails Again," "Kid Nightingale,"
"Gorilla Man," and "Tear Gas Squad." A similar contract for 100
pictures, involving a license fee of $140,000, was entered into by
WMAR of Baltimore. Triangle Publications, owner and operator of
five stations, was refused the right to select among Associated's
packages, and ultimately purchased the entire library of 754 films
for a price of $2,262,000 plus 10% of gross receipts. Station WJAR
of Providence, which licensed a package of 58 features for a fee of
$25,230, had asked first if certain films it considered undesirable
could be dropped from the offered packages, and was told that the
packages could not be split.
Defendant National Telefilm Associates was found to have entered
into five block booked contracts. Station WMAR wanted only 10
Selznick films, but was told that it could not have them unless it
also bought 24 inferior films from the "TNT" package and 12
unwanted "Fabulous 40's." It bought all of these, for a total of
$62,240. Station WBRE, before buying the "Fox 52" package in its
entirety for $7,358.50, requested and was refused the right to
eliminate undesirable features. Station WWLP of Springfield,
Massachusetts, inquired about the possibility of splitting two of
the packages, was told this was not possible, and then bought a
total of 59 films in two packages for $8,850. A full package
contract for National's "Rocket 86" group of 86 films was entered
into by KPIX of San Francisco, payments to total $232,200, after
KPIX requested and was denied permission to eliminate undesirable
films from the package. Station WJAR wanted to drop 10 or 12
British films from this defendant's "Champagne 58" package, was
told that none could be deleted, and then bought the block for
The judge found that defendant United Artists Corporation had in
three consummated negotiations conditioned the sale of films on the
purchase of an entire
Page 371 U. S. 43
package. The "Top 39" were licensed by WAAM of Baltimore for
$40,000 only after receipt of a refusal to sell 13 of the 39 films
in the package. Station WHTN of Huntington, West Virginia,
purchased "Award 52" for $16,900 after United Artists refused to
deal on any basis other than purchase of the entire 52 films.
Thirty-nine films were purchased by WWLP for $5,850 after an
initial inquiry about selection of titles was refused.
Since defendant C & C was found to have had an overall
policy of block booking, the court did not analyze the particular
circumstances of the nine negotiations which had resulted in the
licensing of packages of films. C & C's policies resulted in at
least one station having to take a package in which "certain of the
films were unplayable, since they had a foreign language sound
track." 189 F. Supp. at 389.
The court entered separate final judgments against the
defendants, wherein each was enjoined from
"(A) Conditioning or tying, or attempting to condition or tie,
the purchase or license of the right to exhibit any feature film
over any television station upon the purchase or license of any
"(B) Conditioning the purchase or license of the right to
exhibit any feature film over any television station upon the
purchase or license for exhibition over any other television
station of that feature film, or any other film;"
"(C) Entering into any agreement to sell or license the right to
exhibit any feature film over any television station in which the
differential between the price or fee for such feature film when
sold or licensed alone and the price or fee for the same film when
sold or licensed with one or more other film [sic
] has the
effect of conditioning the sale or license of such film upon the
sale or license of one or more other films. "
Page 371 U. S. 44
All of the defendants except National Telefilm [Footnote 2
] appeal from the decree. The
appeals of defendants Loew's, Screen Gems, Associated Artists, and
United Artists raise identical issues, and are consolidated as No.
43. The appeal of defendant C & C raises additional issues, and
is therefore separately numbered as No. 44. The Government,
although it won on the merits below, asserts in a cross-appeal (No.
42) that the scope and specificity of the decree entered by the
District Court were inadequate to prevent the continued attainment
of illegal objectives. It seeks to have the decree broadened in a
number of ways. All of the defendants below oppose these
modifications. The cases are here on direct appeal from the
District Court under § 2 of the Expediting Act, 32 Stat. 823, as
amended, 15 U.S.C. § 29. We noted probable jurisdiction, 368 U.S.
973, and consolidated the appeals. We shall consider No. 43 first,
since appellants there raise the fundamental question whether their
activities were in violation of the antitrust laws. We shall
thereafter consider No. 44, the special arguments of appellant C
& C, and finally No. 42, the Government's request for
broadening the decree.
This case raises the recurring question of whether specific
tying arrangements violate § 1 of the Sherman Act. [Footnote 3
] This Court has recognized that
"[t]ying agreements serve hardly any purpose beyond the suppression
of competition," Standard Oil Co. of California v. United
States, 337 U. S. 293
337 U. S.
-306. They are an object of antitrust
Page 371 U. S. 45
concern for two reasons -- they may force buyers into giving up
the purchase of substitutes for the tied product, see
Times-Picayune Pub. Co. v. United States, 345 U.
, 345 U. S. 605
and they may destroy the free access of competing suppliers of the
tied product to the consuming market, see International Salt
Co. v. United States, 332 U. S. 392
332 U. S. 396
A tie-in contract may have one or both of these undesirable effects
when the seller, by virtue of his position in the market for the
tying product, has economic leverage sufficient to induce his
customers to take the tied product along with the tying item. The
standard of illegality is that the seller must have
"sufficient economic power with respect to the tying product to
appreciably restrain free competition in the market for the tied
product. . . ."
Northern Pacific R. Co. v. United States, 356 U. S.
, 356 U. S. 6
Market dominance -- some power to control price and to exclude
competition -- is by no means the only test of whether the seller
has the requisite economic power. Even absent a showing of market
dominance, the crucial economic power may be inferred from the
tying product's desirability to consumers or from uniqueness in its
attributes. [Footnote 4
The requisite economic power is presumed when the tying product
is patented or copyrighted, International Salt Co. v. United
States, 332 U. S. 392
Page 371 U. S. 46
v. Paramount Pictures, Inc., 334 U.
. This principle grew out of a long line of patent
cases which had eventuated in the doctrine that a patentee who
utilized tying arrangements would be denied all relief against
infringements of his patent. Motion Picture Patents Co. v.
Universal Film Mfg. Co., 243 U. S. 502
Carbice Corp. v. American Patents Dev. Corp., 283 U. S.
; Leitch Mfg. Co. v. Barber Co., 302 U.
; Ethyl Gasoline Corp. v. United States,
309 U. S. 436
Morton Salt Co. v. G. S. Suppiger Co., 314 U.
; Mercoid Corp. v. Mid-Continent Investment
Co., 320 U. S. 661
These cases reflect a hostility to use of the statutorily granted
patent monopoly to extend the patentee's economic control to
unpatented products. The patentee is protected as to his invention,
but may not use his patent rights to exact tribute for other
Since one of the objectives of the patent laws is to reward
uniqueness, the principle of these cases was carried over into
antitrust law on the theory that the existence of a valid patent on
the tying product, without more, establishes a distinctiveness
sufficient to conclude that any tying arrangement involving the
patented product would have anticompetitive consequences. E.g.,
International Salt Co. v. United States, 332 U.
. In United States v. Paramount Pictures,
Inc., 334 U. S. 131
334 U. S.
-159, the principle of the patent cases was applied
to copyrighted feature films which had been block booked into movie
theaters. The Court reasoned that
"The copyright law, like the patent statutes, makes reward to
the owner a secondary consideration. In Fox Film Corp. v.
Doyal, 286 U. S. 123
, 286 U. S.
, Chief Justice Hughes spoke as follows respecting
the copyright monopoly granted by Congress."
"The sole interest of the United States and the primary object
in conferring the monopoly lie in the general benefits
Page 371 U. S. 47
derived by the public from the labors of authors."
"It is said that reward to the author or artist serves to induce
release to the public of the products of his creative genius. But
the reward does not serve its public purpose if it is not related
to the quality of the copyright. Where a high quality film greatly
desired is licensed only if an inferior one is taken, the latter
borrows quality from the former and strengthens its monopoly by
drawing on the other. The practice tends to equalize, rather than
differentiate, the reward for the individual copyrights. Even where
all the films included in the package are of equal quality, the
requirement that all be taken if one is desired increases the
market for some. Each stands not on its own footing, but in whole
or in part on the appeal which another film may have. As the
District Court said, the result is to add to the monopoly of the
copyright in violation of the principle of the patent cases
involving tying clauses."
334 U.S. at 334 U. S.
Appellants attempt to distinguish the Paramount
decision in its relation to the present facts: the block booked
sale of copyrighted feature films to exhibitors in a new medium --
television. Not challenging the District Court's finding that they
did engage in block booking, they contend that the uniqueness
attributable to a copyrighted feature film, though relevant in the
movie theater context, is lost when the film is being sold for
television use. Feature films, they point out, constitute less than
8% of television programming, and they assert that films are
"reasonably interchangeable" with other types of programming
material and with other feature films as well. Thus, they argue
that their behavior is not to be judged by the principle of the
patent cases, as applied to copyrighted materials in Paramount
but by the general
Page 371 U. S. 48
principles which govern the validity of tying arrangements of
nonpatented products, e.g., Northern Pacific R. Co. v. United
States, 356 U. S. 1
356 U. S. 6
356 U. S. 11
They say that the Government's proof did not establish their
"sufficient economic power" in the sense contemplated for
nonpatented products. [Footnote
Appellants cannot escape the applicability of Paramount
A copyrighted feature film does not lose its legal
or economic uniqueness because it is shown on a television, rather
than a movie screen.
The district judge found that each copyrighted film block booked
by appellants for television use "was in itself a unique product";
that feature films "varied in theme, in artistic performance, in
stars, in audience appeal, etc.," and were not fungible; and that,
since each defendant, by reason of its copyright, had a
"monopolistic" position as to each tying product, "sufficient
economic power" to impose an appreciable restraint on free
competition in the tied product was present, as demanded by the
decision. 189 F. Supp. at 381. [Footnote 6
] We agree. These findings of
the district judge, supported by the record, confirm the
presumption of uniqueness resulting from the existence of the
Moreover, there can be no question in this case of the adverse
effects on free competition resulting from appellants'
Page 371 U. S. 49
illegal block booking contracts. Television stations forced by
appellants to take unwanted films were denied access to films
marketed by other distributors who, in turn, were foreclosed from
selling to the stations. Nor can there be any question as to the
substantiality of the commerce involved. The 25 contracts found to
have been illegally block booked involved payments to appellants
ranging from $60,800 in the case of Screen Gems to over $2,500,000
in the case of Associated Artists. A substantial portion of the
licensing fees represented the cost of the inferior films which the
stations were required to accept. These anticompetitive
consequences are an apt illustration of the reasons underlying out
recognition that the mere presence of competing substitutes for the
tying product, here taking the form of other programming material
as well as other feature films, is insufficient to destroy the
legal, and indeed the economic, distinctiveness of the copyrighted
product. Standard Oil Co. of California v. United States,
337 U. S. 293
337 U. S. 307
Times-Picayune Pub. Co. v. United States, 345 U.
, 345 U. S. 611
and n. 30. By the same token, the distinctiveness of the
copyrighted tied product is not inconsistent with the fact of
competition, in the form of other programming material and other
films, which is suppressed by the tying arrangements.
It is therefore clear that the tying arrangements here, both by
their "inherent nature" and by their "effect," injuriously
restrained trade. United States v. American Tobacco Co.,
221 U. S. 106
221 U. S. 179
Accommodation between the statutorily dispensed monopoly in the
combination of contents in the patented or copyrighted product and
the statutory principles of free competition demands that extension
of the patent or copyright monopoly by the use of tying agreements
be strictly confined. There may be rare circumstances in which the
doctrine we have enunciated under § 1 of the Sherman Act
prohibiting tying arrangements involving patented or
Page 371 U. S. 50
tying products is inapplicable. However, we find it difficult to
conceive of such a case, and the present case is clearly not
The principles underlying our Paramount Pictures
decision have general application to tying arrangements involving
copyrighted products, and govern here. Applicability of
brings with it a meeting of the test of
since Paramount Pictures is but a
particularized application of the general doctrine as reaffirmed in
Enforced block booking of films is a
vice in both the motion picture and television industries, and that
the sin is more serious (in dollar amount) in one than the other
does not expiate the guilt for either. Appellants' block booked
contracts are covered by the flat holding in Paramount
334 U.S. at
334 U. S. 159
, that "a refusal to license one or more
copyrights unless another copyright is accepted" is "illegal."
Appellants (other than C & C) make the additional argument
that each of them was found to have entered into such a small
number of illegal contracts as to make it improper to enter
injunctive relief. Appellants urge that their overall sales
policies were to allow selective purchasing of films, and that, in
light of this, the fact that a few contracts were found to be
illegal does not justify the entering of injunctive relief. We
disagree. Illegality having been properly found, appellants cannot
now complain that its incidence was too scattered to warrant
injunctive relief. The trial judge, exercising sound judgment, has
concluded that injunctive relief is necessary to prevent further
violations. We think that finding wholly warranted. Moreover, the
record shows that Loew's only instituted its policy of making
individual films available shortly after suit was brought, and
there is evidence that United Artists was conscientious in
publicizing its willingness
Page 371 U. S. 51
to deal in individual films only after the commencement of suit
was imminent. There is no reason to disturb the judge's legal
conclusions and decree merely because he did not find more illegal
agreements when, as here, the illegal behavior of each defendant
had substantial anticompetitive effects.
Appellant C & C, in its separate appeal, raises certain
arguments which amount to an attempted business justification for
its admitted block booking policy. C & C purchased the
telecasting rights in some 742 films known as the "RKO Library." It
did so with a bank loan for the total purchase price, and, to get
the bank loan, it needed a guarantor, which it found in the
International Latex Corporation. Latex, however, demanded and
secured an agreement from C & C that films would not be sold
without obtaining in return a commitment from television stations
to show a minimum number of Latex spot advertisements in
conjunction with the films. Thus, since stations could not feasibly
telecast the minimum number of spots without buying a large number
of films to spread them over, C & C by requiring the minimum
number of advertisements, effectively forced block booking on those
stations which purchased its films. C & C contends that block
booking was merely the by-product of two legitimate business
motives -- Latex' desire for a saturation advertising campaign and
C & C's wish to buy a large film library. However, the obvious
answer to this contention is that the thrust of the antitrust laws
cannot be avoided merely by claiming that the otherwise illegal
conduct is compelled by contractual obligations. Were it otherwise,
the antitrust laws could be nullified. Contractual obligations
cannot thus supersede statutory imperatives. Hence, tying
arrangements, once found to exist in a context
Page 371 U. S. 52
of sufficient economic power, are illegal "without elaborate
inquiry as to . . . the business excuse for their use,"
Northern Pacific R. Co. v. United States, 356 U. S.
, 356 U. S. 5
In Nos. 43 and 44, therefore, we agree with the merits of the
District Court's decision. It correctly found that the conditioning
of the sale of one or more copyrighted feature films to television
stations upon the purchase of one or more other films is illegal.
The antitrust laws do not permit a compounding of the statutorily
The trial judge's ability to formulate a decree tailored to deal
with the violations existent in each case is normally superior to
that of any reviewing court, due to his familiarity with testimony
and exhibits. Notwithstanding our belief that primary
responsibility for the decree must rest with the trial judge if
workable results are to obtain, it is our duty to examine the
decree in light of the record to see that the relief it affords is
adequate to prevent the recurrence of the illegality which brought
on the given litigation. United States v. United States Gypsum
Co., 340 U. S. 76
340 U. S.
The United States contends that the relief afforded by the final
judgments [Footnote 7
inadequate, and that, to be adequate, it must also: (1) require the
defendants to price the films individually and offer them on a
picture by picture basis; (2) prohibit noncost-justified
differentials in price between a film when sold individually and
when sold as part of a package; (3) proscribe "temporary" refusals
by a distributor to deal on less than a block basis while he is
negotiating with a competing television station for a package
Page 371 U. S. 53
Some of the practices which the Government seeks to have
enjoined with its requested modifications are acts which may be
entirely proper when viewed alone. To ensure, however, that relief
is effectual, otherwise permissible practices connected with the
acts found to be illegal must sometimes be enjoined. Ethyl
Gasoline Corp. v. United States, 309 U.
, 309 U. S. 461
United States v. Bausch & Lomb Optical Co.,
321 U. S. 707
321 U. S. 724
Hartford-Empire Co. v. United States, 323 U.
, 323 U. S. 409
International Salt Co. v. United States, 332 U.
, 332 U. S. 401
United States v. United States Gypsum Co., 340 U. S.
, 340 U. S. 88
When the Government has won the lawsuit, it is entitled to win the
cause as well, International Salt Co. v. United States,
332 U.S. at 332 U. S.
A. Initial Offer of Individual Films, Individually
Under the final judgments entered by the court, a distributor
would be free to offer films in a package initially, without
stating individual prices. If, however, he delayed at all in
producing individual prices upon request, he would subject himself
to a possible contempt sanction. The Government's first request
would prevent this "first bite" possibility, forcing the offer of
the films on an individual basis at the outset (but, as we view it,
not precluding a simultaneous package offer, United States v.
Paramount Pictures, Inc., supra,
334 U.S. at 334 U. S.
This is a necessary addition to the decrees, in view of the
evidence appearing in the record. Television stations which asked
for the individual prices of some of the better pictures "couldn't
get any sort of a firm kind of an answer," according to one station
official. He stated that they received a
"certain form of equivocation, like the price for the better
pictures that we wanted was so high that it wouldn't be worth our
while to discuss the matter, . . .
Page 371 U. S. 54
the implication being that it wouldn't happen."
A Screen Gems intra-company memorandum about a Baton Rouge
station's price request stated that
"I told him that I would be happy to talk to him about it,
figuring we could start the old round robin that worked so well in
Houston & San Antonio."
Without the proposed amendment to the decree, distributors might
surreptitiously violate it by allowing or directing their salesmen
to be reluctant to produce the individual price list on request.
This subtler form of sales pressure, though not accompanied by any
observable delay over time, might well result in some television
stations' buying the block, rather than trying to talk the seller
into negotiating on an individual basis. Requiring the production
of the individual list on first approach will obviate this
B. Prohibition of Noncost-justified Price
The final judgments, as entered, only prohibit a price
differential between a film offered individually and as part of a
package which "has the effect of conditioning the sale or license
of such film upon the sale or license of one or more other films."
The Government contends that this provision, appearing by itself,
is too vague, and will lead to unnecessary litigation.
Differentials unjustified by cost savings may already be prohibited
under the decree as it now appears. Nevertheless, the addition of a
specific provision to prevent such differentials will prevent
uncertainty in the operation of the decree. To ensure that
litigation over the scope and application of the decrees is not
left until a contempt proceeding is brought, the second requested
modification should be added. The Government, however, seeks to
make distribution costs the only saving which can legitimately be
the basis of a discount. We would not so limit the relevant cost
justifications. To prevent definitional arguments, and to
Page 371 U. S. 55
that all proper bases of quantity discount may be used, the
modification should be worded in terms of allowing all legitimate
C. Prohibition of "Temporary" Refusals to
The Government's third request is, like the first, designed to
prevent distributors from subjecting prospective purchasers to a
"run-around" on the purchase of individual films. No doubt
temporary refusal to sell in broken lots to one customer while
negotiating to sell the entire block to another is a proper
business practice, viewed in vacuo,
but we think that, if
permitted here, it may tend to force some stations into buying
pre-set packages to forestall a competitor's getting the entire
group. In recognition of this, the Government seeks a blanket
prohibition against all temporary refusals to deal. We agree in the
main, except that the modification proposed by the Government fails
to give full recognition to that part of this Court's holding in
"We do not suggest that films may not be sold in blocks or
groups, when there is no requirement, express or implied, for the
purchase of more than one film. All we hold to be illegal is a
refusal to license one or more copyrights unless another copyright
334 U.S. at 334 U. S.
We therefore grant the Government's request, but modify it only
to the limited degree necessary to permit a seller briefly to defer
licensing or selling to a customer pending the expeditious
conclusion of bona fide
negotiations already being
conducted with a competing station on a proposal wherein the
distributor has simultaneously offered to license or sell films
either individually or in a package.
The modifications we have specified will bring about a greater
precision in the operation of the decrees. We
Page 371 U. S. 56
have concluded that they will properly protect the interest of
the Government in guarding against violations, and the interest of
the defendants in seeking in good faith to comply.
The judgments are vacated, and the causes are remanded to the
District Court for further proceedings in conformity with this
Vacated and remanded.
* Together with No. 43, Loew's Incorporated et al. v. United
and No. 44, C & C Super Corp. v. United
also on appeals from the same Court.
"Every contract, combination in the form of trust or otherwise,
or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is declared to be illegal. . .
26 Stat. 209 (1890), as amended, 15 U.S.C. § 1.
National Telefilm has, however, filed a brief in opposition to
the Government's requests for modifications in the decree,
See International Salt Co. v. United States,
332 U. S. 392
United States v. Paramount Pictures, Inc., 334 U.
; Times-Picayune Pub. Co. v. United
States, 345 U. S. 594
Northern Pacific R. Co. v. United States, 356 U. S.
Since the requisite economic power may be found on the basis of
either uniqueness or consumer appeal, and since market dominance in
the present context does not necessitate a demonstration of market
power in the sense of § 2 of the Sherman Act, it should seldom be
necessary in a tie-in sale case to embark upon a full-scale factual
inquiry into the scope of the relevant market for the tying product
and into the corollary problem of the seller's percentage share in
that market. This is even more obviously true when the tying
product is patented or copyrighted, in which case, as appears in
greater detail below, sufficiency of economic power is presumed.
Appellants' reliance on United States v. E. I. du Pont de
Nemours & Co., 351 U. S. 377
Appellants' framing of their argument in terms of each of them
not having dominance in the market for television exhibition of
feature films misconceives the applicable legal standard. As noted,
p. 371 U. S. 45
"sufficient economic power," as contemplated by the Northern
case, is a term more inclusive in scope than "market
To use the trial court's apt example, forcing a television
station which wants "Gone With The Wind" to take "Getting Gertie's
Garter" as well is taking undue advantage of the fact that, to
television as well as motion picture viewers, there is but one
"Gone With The Wind."
The operative portion of the injunctions appears at p.
371 U. S. 43
MR. JUSTICE HARLAN, with whom MR. JUSTICE STEWART joins,
concurring in part and dissenting in part.
I agree with and join in Parts I and II of the Court's opinion,
relating to No. 43 and No. 44, respectively. As to 371 U.
relating to No. 42, I dissent. My disagreement goes
not so much to the particular additional relief granted, but to the
fact that the Court has deemed it appropriate to concern itself at
all with such comparatively trivial remedial glosses upon the
District Court's decree.
I think it distorts the proper relationship of this Court to the
lower federal courts, whose assessment of a particular situation is
bound to be more informed than ours, for us to exercise revisory
power over the terms of antitrust relief, except in instances where
things have manifestly gone awry. This is not such a case, as the
meticulous handling of it by the District Court abundantly shows.
In my view, its decree should be left undisturbed.