The acts of a hotel proprietor, in making available to his
guests, through the instrumentality of a radio receiving set and
loudspeakers 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 § 1(e) of the Copyright Act of March 4, 1909.
P.
283 U. S. 196
et seq.
Question certified by the Circuit Court of Appeals upon appeals
from decrees of the District Court,
32 F.2d
366, which dismissed suits to enjoin infringement of copyright
and for damages.
Page 283 U. S. 195
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
These suits were brought in the federal court for Western
Missouri by the American Society of Composers, Authors, and
Publishers, and one of its members, against the Jewell-La Salle
Realty Company, which operates the La Salle Hotel at Kansas City.
The hotel maintains a master radio receiving set which is wired to
each of the public and private rooms. As part of the service
offered to its guests, loudspeakers or headphones are provided so
that a program received on the master set can, if desired, be
simultaneously heard throughout the building. Among the programs
received are those transmitted by Wilson Duncan, who operates a
duly licensed commercial broadcasting station in the same city.
Duncan selects his own programs and broadcasts them for profit.
There is no arrangement of any kind between him and the hotel. Both
were notified by the plaintiff society of the existence of its
copyrights, and were advised that, unless a license were obtained,
performance of any copyrighted musical composition owned by its
members was forbidden. Thereafter a copyrighted popular song, owned
by the plaintiffs, was repeatedly broadcast by Duncan, and was
received by the hotel company and made available to its guests.
Suits were brought for an injunction and damages for the alleged
infringements. [
Footnote 1]
After a hearing on stipulated facts, relief against the hotel
company was denied on the ground that its acts did not constitute a
"performance" within the Copyright Act.
Buck v.
Duncan, 32 F.2d
366. Plaintiffs appealed to the circuit court of appeals, which
certified the following question:
"Do the acts of a hotel proprietor in making available to his
guests, through the instrumentality of a radio receiving
Page 283 U. S. 196
set and loudspeakers 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 U.S.C. Sec. 1(e)?"
The provision referred to is § 1 of the Copyright Act of March
4, 1909, c. 320, 35 Stat. 1075, which provides that
"Any person entitled thereto, upon complying with the provisions
of this title, shall have the exclusive right: . . . (e) [t]o
perform the copyrighted work publicly for profit if it be a musical
composition and for the purpose of public performance for
profit."
The parties agree that the owner of a private radio receiving
set who in his own home invites friends to hear a musical
composition which is being broadcast would not be liable for
infringement. For, even if this be deemed a performance, it is
neither public nor for profit.
Compare Herbert v. Shanley
Co., 242 U. S. 591. The
contention that what the hotel company does is not a performance
within the meaning of the Copyright Act is urged on three
grounds.
First. The defendant contends that the Copyright Act
may not reasonably be construed as applicable to one who merely
receives a composition which is being broadcast. Although the art
of radio broadcasting was unknown at the time the Copyright Act of
1909 was passed, and the means of transmission and reception now
employed is wholly unlike any then in use, [
Footnote 2] it is not denied that such
Page 283 U. S. 197
broadcasting may be within the scope of the Act. [
Footnote 3]
Compare Kalem Co. v. Harper
Bros., 222 U. S. 55;
Gambart v. Ball, 14 C.B. (N.S.) 306, 319. The argument
here urged, however, is that, since the transmitting of a musical
composition by a commercial broadcasting station is a public
performance for profit, control of the initial radio rendition
exhausts the monopolies conferred, both that of making copies
(including records) and that of giving public performances for
profit (including mechanical performances from a record), and that
a monopoly of the reception, for commercial purposes, of this same
rendition, is not warranted by the Act. The analogy is invoked of
the rule under which an author who permits copies of his writings
to be made cannot, by virtue of his copyright, prevent or restrict
the transfer of such copies.
Compare Bobbs-Merrill Co. v.
Straus, 210 U. S. 339.
This analogy is inapplicable. It is true that control of the sale
of copies is not permitted by the Act, [
Footnote 4] but a monopoly is expressly granted of all
public performances for profit.
The defendant next urges that it did not perform because there
can be but one actual performance each time
Page 283 U. S. 198
a copyrighted selection is rendered, and that, if the
broadcaster is held to be a performer, one who, without connivance,
receives and distributes the transmitted selection, cannot also be
held to have performed it. But nothing in the Act circumscribes the
meaning to be attributed to the term "performance," or prevents a
single rendition of a copyrighted selection from resulting in more
than one public performance for profit. While this may not have
been possible before the development of radio broadcasting, the
novelty of the means used does not lessen the duty of the courts to
give full protection to the monopoly of public performance for
profit which Congress has secured to the composer.
Compare
Kalem Co. v. Harper Bros., 222 U. S. 55,
222 U. S. 63. No
reason is suggested why there may not be more than one liability.
And, since the public reception for profit, in itself, constitutes
an infringement, we 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.
The defendant contends further that the acts of the hotel
company were not a performance because no detailed choice of
selections was given to it. In support of this contention, it is
pointed out that the operator of a radio receiving set cannot
render at will a performance of any composition, but must accept
whatever program is transmitted during the broadcasting period.
Intention to infringe is not essential under the Act.
Compare
Hein v. Harris, 175 F. 875,
aff'd, 183 F. 107;
Stern v. Jerome H. Remick & Co., 175 F. 282;
Haas
v. Leo Feist, Inc., 234 F. 105;
M. Witmark & Sons v.
Calloway, 22 F.2d
412, 414. And knowledge of the particular selection to be
played or received is immaterial. One who hires an orchestra for a
public performance for profit is not relieved from a charge of
infringement merely because he does not select the particular
program to be played. Similarly, when he tunes in on a broadcasting
station, for his own commercial purposes, he necessarily assumes
the
Page 283 U. S. 199
risk that, in so doing, he may infringe the performing rights of
another.
Compare Harms v. Cohen, 279 F. 276, 278;
M.
Witmark & Sons v. Pastime Amusement Co., 298 F. 470, 475,
aff'd, 2 F.2d 1020;
M. Witmark & Sons v.
Calloway, 22 F.2d
412, 413. It may be that proper control over broadcasting
programs would automatically secure to the copyright owner
sufficient protection from unauthorized public performances by use
of a radio receiving set, [
Footnote
5] and that this might justify legislation denying relief
against those who, in using the receiving set, innocently invade
the copyright, [
Footnote 6] but
the existing statute makes no such exception.
Second. The defendant contends that there was no
performance because the reception of a radio broadcast is no
different from listening to a distant rendition of the same
program. [
Footnote 7] We are
satisfied that the reception of a
Page 283 U. S. 200
radio broadcast and its translation into audible sound is not a
mere audition of the original program. It is essentially a
reproduction. As to the general theory of radio transmission, there
is no disagreement. All sounds consist of waves of relatively low
frequencies which ordinarily pass through the air and are locally
audible. Thus, music played at a distant broadcasting studio is not
directly heard at the receiving set. In the microphone of the radio
transmitter, the sound waves are used to modulate electrical
currents of relatively high frequencies which are broadcast through
an entirely different medium, conventionally known as the "ether."
These radio waves are not audible. [
Footnote 8] In the receiving set they are rectified --
that is, converted into direct currents which actuate the
loudspeaker to produce again in the air sound waves of audible
frequencies. The modulation of the radio waves in the transmitting
apparatus by the audible sound waves is comparable to the manner in
which the wax phonograph record is impressed by these same waves
through the medium of a recording stylus. [
Footnote 9] The transmitted radio waves require a
receiving set for their detection and translation
Page 283 U. S. 201
into audible sound waves, just as the record requires another
mechanism for the reproduction of the recorded composition. In
neither case is the original program heard, and, in the former,
complicated electrical instrumentalities are necessary for its
adequate reception and distribution. Reproduction in both cases
amounts to a performance.
Compare Buck v.
Heretis, 24 F.2d
876;
Irving Berlin, Inc. v. Daigle, 31 F.2d 832, 833.
In addition, the ordinary receiving set and the distributing
apparatus here employed by the hotel company are equipped to
amplify the broadcast program after it has been received. Such acts
clearly are more than the use of mere mechanical acoustic devices
for the better hearing of the original program. The guests of the
hotel hear a reproduction brought about by the acts of the hotel in
(1) installing, (2) supplying electric current to, and (3)
operating the radio receiving set and loudspeakers. There is no
difference in substance between the case where a hotel engages an
orchestra to furnish the music and that where, by means of the
radio set and loudspeakers here employed, it furnishes the same
music for the same purpose. In each, the music is produced by
instrumentalities under its control. [
Footnote 10]
Page 283 U. S. 202
Third. The defendant contends that there was no
performance within the meaning of the Act because it is not shown
that the hotel operated the receiving set and loudspeakers for
profit. Unless such acts were carried on for profit, there can, of
course, be no liability. But whether there was a performance does
not depend upon the existence of the profit motive. The question
submitted does not call for a determination whether the acts of the
hotel company recited in the certificate constitute operation for
profit.
The question certified is answered: Yes.
[
Footnote 1]
In No. 138, Duncan was joined as a defendant and a decree
pro confesso for failure to answer was entered against
him. In No. 139, the hotel company was the only defendant.
See
also No. 140,
post, p.
283 U. S. 202.
[
Footnote 2]
Station KDKA, erected in Pittsburgh in 1920, was the pioneer
commercial broadcasting station in the world. The Radio Industry,
Harvard Graduate School of Business Administration Lectures,
1927-1928, pp. 195-209. The latest amendment of the Copyright Act,
which added new classes of copyrights, was that of August 24, 1912,
c. 356, 37 Stat. 488.
[
Footnote 3]
See M. Witmark & Sons v. L. Bamberger & Co.,
291 F. 776;
Remick & Co. v. American Automobile Accessories
Co., 5 F.2d 411;
Remick & Co. v. General Electric
Co., 16 F.2d
829.
See also Messager v. British Broadcasting Co.,
Ltd., [1927] 2 K.B. 543,
rev'd [1928] 1 K.B. 660,
aff'd, [1929] A.C. 151;
Chappell & Co., Ltd. v.
Associated Radio Co. of Australia, Ltd., [1925] Victorian Law
Reports, 350.
[
Footnote 4]
The rule of the
Bobbs-Merrill Case was enacted into the
Copyright Act of March 4, 1909, c. 320, § 41, 35 Stat. 1075, 1084.
See H.Rep. No. 2222, 60th Cong., 2d Sess., February 22,
1909, p. 19. It is applicable only where there is no relation
between the manufacturer of the copy and the purchaser which might
make the latter liable as a contributory infringer.
Compare
Scribner v. Straus, 210 U. S. 352,
210 U. S. 355.
In the case at bar, the stipulated facts show that there was no
relation whatever between the broadcaster and the hotel company, so
that, even if the broadcasting constituted an infringement, there
would be no question of contributory infringement.
[
Footnote 5]
If the copyrighted composition had been broadcast by Duncan with
plaintiffs' consent, a license for its commercial reception and
distribution by the hotel company might possibly have been implied.
Compare Buck v. Debaum, 40 F.2d
734. But Duncan was not licensed, and the position of the hotel
company is not unlike that of one who publicly performs for profit
by the use of an unlicensed phonograph record.
[
Footnote 6]
See the so-called Vestal Copyright Bill, which failed
of passage in the Seventy-First Congress. H.R. 12549, 71st Cong.2d
Sess. § 15(d).
Compare note 10 infra. See also arguments
concerning the broadcasting of copyrighted selections as set forth
in Joint Hearings before the Committees on Patents, on S. 2328 and
H.R. 10353, 69th Cong. 1st Sess. April 5-9, 1926; Hearings before
the Senate Committee on Patents, on H.R. 12549, 71st Cong.3d Sess.
January 28, 29, 1931, pp. 52,
et seq.; Sen.Rep. No. 1732,
id., February 17, 1931, p. 29.
[
Footnote 7]
This argument is based upon an elaborate discussion of the
theory of radio transmission and reception. Defendant's hypothesis
is that the energy which actuates the receiving apparatus -- that
is, which varies the currents in the receiver to produce audible
sound -- is part of the original energy exerted upon the air by the
performer. Hence, it is urged that the radio receiving set is no
more than a mechanical or electrical ear trumpet for the better
audition of a distant performance.
[
Footnote 8]
Sound waves, which can pass through air, water, or solids, and
radio or other electromagnetic waves, which operate in the "ether,"
behave similarly in many respects. Yet not only are the latter
inaudible, but they travel at relatively tremendous speeds. Sound
waves travel at ordinary temperatures approximately 1,100 feet a
second; electromagnetic waves with the speed of light, or about
186,000 miles per second. This velocity is dependent solely upon
the particular medium through which the various kinds of waves
travel.
See Morecroft, Principles of Radio Communication,
c. IV. Thus, broadcast time signals can be heard practically
simultaneously on receiving sets hundreds of miles apart; ordinary
sound signals cannot.
Compare, as to the general theory of
radio communication,
Radio Corp. of America v. Twentieth
Century Radio Corp., 19 F.2d 290, 291;
Chappell & Co.,
Ltd. v. Associated Radio Co. (1925) Victorian Law Reports,
350, 357, 358.
[
Footnote 9]
The impressions on the phonograph disc are, of course,
permanent, whereas the modulations of the carrier radio waves,
continually emitted by the sending station, are ephemeral. But, in
both cases, the means used to transmit the selection being played
are wholly different from the musical sounds themselves, and
require an additional mechanism, not under the control of the
performer, for the recreation of the original music.
[
Footnote 10]
At the present time, there are renewed proposals for the
revision of the Copyright Act in the light of new conditions.
See summaries in the Annual Report of the Register of
Copyrights (1928), pp. 6-13;
id., (1929) pp. 16-24;
id., (1930), pp. 8-13.
See also the so-called
Vestal Bill, the most recent of these, introduced in the
Seventy-first Congress on May 22, 1930. H.R. 12549, 71st Cong., 2d
Sess., § 1(d), (g); Sen.Rep. No. 1732,
id., 3d Sess., Feb.
17, 1931, pp. 4-5, 29.
Compare Hearings before the Senate
Committee on Patents on H.R. 12549,
id., January 28-29,
1931, pp. 25,
passim. This measure was debated at length
in the Senate, but was not reached on the final calendar.
See 74 Cong.Rec. Pt. IV, pp. 6213-6849;
id., Pt.
V, p. 33.