The problem of the scope of the exhibition right in motion pictures had come up before the Shotwell Committee in its proceedings which led up to the drafting of the Thomas bill. While ASCAP and the book publishers proposed a public exhibition right for copyrighted motion pictures, the motion picture industry opposed any limitation to "public" exhibitions. In a memorandum comparing the proposals drafted by the various interested groups, Mr. Edward A. Sargoy stated:

The motion picture industry has consistently maintained that the exhibition right for copyrighted motion pictures is not in the same category as a dramatic performing right, particularly in respect of any such limitation as "public." The pirating user of a copyrighted stage play takes only the directions in the form of the plot and dialogue, but makes his own production, requiring living actors for each infringing performance. No two performances are ever exactly identical, and nonpublic performance is not a serious injury. The unauthorized exhibition of a copyrighted motion picture is a species of "copying" the identical work of the owner (Patterson v. Century Productions, Inc., 93 F. 2d 489 (2d Cir. 1937), cert. den. 303 U.S. 655 (1938)). The pirating user appropriates not merely plot and dialogue, but the best and only production containing the services of artists and actors otherwise unavailable, and can give unlimited identical performances in any place for any gathering, which compete with and destroy the value of the work for the copyright owner and his legitimate exhibition licensees.126

The view of the motion picture industry was followed in the Thomas bill, drafted by the Shotwell Committee. As already mentioned, the bill provided specifically for the exhibition right in motion pictures without limiting it to public exhibitions.

C. ANALYSIS OF BASIC ISSUES

I. PERFORMING RIGHTS IN LITERARY AND MUSICAL WORKS

The background material presented in Part A above indicates that there has been no serious contention regarding the propriety of limiting the performing rights in literary and musical works to public performances.127 The issues that have been brought into question relate to the "for profit" and other similar limitations on the right of public performance. Since these limitations have been applied to nondramatic literary and musical works, but not generally to dramatic works, these two categories will be considered separately.

(a) Nondramatic works. The review in Part A above of the development of the present law, proposed revisions, and foreign laws suggests four alternatives which might be considered in connection with the question of limiting public performing rights in nondramatic literary and musical works: (1) the "for profit" limitation could be maintained in its present form; (2) a provision listing specific exemptions could be substituted for the present "for profit" limitation; (3) a provision listing specific exemptions could be added to the "for profit" limitation; or (4) the "for profit" limitation could be abolished without substituting for it other limitations. Each of these four alternatives has been proposed in one or more of the past bills for general revision of the U.S. law and is found in the law of some foreign countries.

(1) There are numerous arguments for preserving the "for profit" limitation in its present form. It has often been emphasized that the

126 See note 94, supra.

127 The Sirovich bill of 1936 would have extended the performing right in dramatic works to all performances, but this was strongly criticized and not defended at the Hearings (see notes 84, 88, 89, supra and the text thereto).

author's right to royalties from public performances of nondramatic works should only extend to the commercial exploitation of his works, and that a further extension of his rights to noncommercial uses would unduly interfere with the public interest in fostering the cultural life of the nation. Moreover, the "for profit" limitation has been in effect for almost 50 years, during which period the courts have interpreted "for profit" as including all methods of public performance related directly or indirectly to commercial exploitation. Inquiries made by the Shotwell Committee in 1938 and 1939 brought out the fact that most of the interested groups then favored a retention of this limitation.128 It is noteworthy, though, that most of the general revision bills, including the Shotwell bill, contained specific exemptions in addition to the "for profit" limitation; see below under (3).

(2) One of the general revision bills, the Perkins bill of 1925, substituted for the "for profit" limitation a provision listing specific exemptions from the author's public performing rights. The bill provided:

That nothing in this Act shall be construed to prohibit the performance of copyright musical works by churches or public schools, provided the performance is given for charitable or educational or religious purposes, unless a fee is charged for admission to the place where the music is so used.

A number of foreign copyright laws 129 have the same approach, although the list of exempt activities usually is much more detailed and extensive than the one proposed in the Perkins bill.

The advantage of this approach is that it would clarify the scope of the exemptions from the public performing right by specifying in rather precise detail the performances for which the public interest is deemed to warrant an exemption. On the other hand, as shown in previous revision efforts, an attempt at comprehensive specification raises controversial questions of inclusion or exclusion. Moreover, such specification would lose the advantage afforded by the general "for profit" limitation of being flexible and adaptable to changing conditions in the future.

If a proposal following this pattern were to be drafted, it should be should be borne in mind that Congress throughout the years has focused its attention on musical performances by charitable, educational, and religious organizations for charitable, educational, or religious purposes. These are the performances, with some variations, which were exempted by the Perkins bill and specifically exempted in all the other bills which added a list of exemptions to the "for profit" limitation. Although the latter provisions were supplementary to the "for profit" limitation, they were drafted so that they could stand alone, and thus may serve as models for a provision intended to be substituted for the "for profit" limitation.

The aforementioned proposals have limited exempt performances in two respects. Only certain organizations were exempted, and only certain performances by such organizations.

The organizations exempted have in some of the revision bills been limited to churches and schools. In other bills they have been described as charitable, educational, and religious organizations. In still other bills agricultural and/or fraternal organizations have been.

125 See p. 103, supra.

129 E.g., Austria (p. 92, supra), Canada (pp. 92, 93, supra), Germany (p. 94, supra), Sweden (p. 95, supra), and United Kingdom (p. 95, supra).

added; and objections voiced at the hearings were directed principally at the inclusion of these two kinds of organizations.

The performances exempted have in all cases been musical performances for charitable, educational, and religious purposes. During the hearings the fear was expressed that profitmaking performances might be given under the guise of charity or other exempt purposes. In order to prevent abuse, some of the bills further qualified the exempt performances. For example, the Perkins bill exempted such performances only where no admission fee was charged. Other bills, for example the Duffy bill, exempted performances only if the proceeds after deduction of reasonable expenses were devoted exclusively to charitable, educational, or religious purposes. Section 12(a) of the Thomas (Shotwell) bill is another example of a provision containing the latter qualification. It exempted:

The performance of a copyrighted musical composition, with or without words, by a recognized bona fide charitable, religious, or educational organization: Provided, That the entire proceeds thereof, after deducting the actual reasonable cost of presenting the same, are devoted exclusively to charitable, religious, or educational purposes: And provided further, That no part of the proceeds of such performance shall be for the private gain of any promoter or similar participant in the enterprise.

A number of the European copyright laws provide that musical performances for the aforementioned or similar purposes are only exempted if participating performers are not paid for their participation.130

(3) As already indicated, a number of the general revision bills contained both the "for profit" limitation, applicable to all nondramatic works, and specific exemptions applicable to musical works.131

The specific exemptions made the application of the "for profit" limitation more definite in the specified situations. Their practical effect varied: the specific exemptions tended in some cases to extend and in other cases to narrow the scope of the "for profit" limitation. For example, the Vestal bill, in its later versions, exempted musical performances by fraternal organizations for charitable, educational, or religious purposes; this addition might have enlarged the exemptions under the "for profit" limitation insofar as such performances might sometimes involve a profit element. The condition found in this and other bills, "unless a fee is charged for admission," might have enlarged the scope of free performances in some respects (where a profit element is involved but no admission fee is charged), and narrowed it in others (where an admission fee is charged to raise funds for charitable or educational purposes). The condition of an admission fee, where appropriate, has the advantage of establishing an easily recognizable line of demarcation. The condition in the Thomas (Shotwell) and a few other bills, that the proceeds of a performance after certain decuctions must be devoted exclusively to charitable, educational, or religious purposes, might be found to be inherent in the "for profit" limitation. Such a condition might have the merit of clarifying a doubtful point, but it would probably be more difficult to administer than the "admission fee" condition.

130 E.g., Austria (p. 92, supra), Germany (p. 94, supra), and Sweden (p. 95, supra).

13 The bills referred to are: the Vestal bill (note 53, supra), the Dill bill (note 67, supra), the first Sirovich bill (note 69, supra), the Duffy bill (note 82, supra), and the Thomas bill (note 92, supra).

Mention might be made here of the proviso in section 104 of the present law which exempts performances of certain musical works— by public schools, church choirs, or vocal societies, provided the perform

ance is given for charitable or educational purposes and not for profit. This seems to add nothing to the general "for profit" limitation inasmuch as it exempts the performances listed only if they are "not for profit." Section 104 could well be eliminated.

Two other exemptions from the public performing right for music, unrelated to the "for profit" limitation, were proposed in a few of the previous general revision bills.132 In broad terms, it was proposed to exempt musical performances (though public and for profit) given by (1) the reception of a broadcast, or by (2) the playing (other than by broadcasting) of a recording, except in either case where admission fees or other charges are made. These exemptions were apparently intended to apply to performances given by means of broadcast receiving sets or by means of records in such places as hotels, taverns, restaurants, etc. Two special bills recently introduced in 1957 proposed to exempt performances given by such means in hotels. 133

The proponents of such exemptions have argued that such performances should be "cleared at the source" (by the broadcasters or record producers); that the small hotel, restaurant, etc., should not be required to pay performing license fees for such performances; and that with respect to the reception of broadcasts, the receiver has no control over the choice of the works performed. In opposition it has been argued that such performances are given for purposes of commercial gain and those who make commercial use of music should compensate the authors for the use of their property; and it has been said that in practice the small hotel, restaurant, etc., is not called upon to obtain a performing license.

(4) It might be argued that the author's public performing rights should not be limited by any exemptions. That is the rule in some foreign countries, notably in France. 134 Moreover, that was the rule when the performing rights in music were first introduced into the copyright law, and has always been the rule for dramatic works.

Whether or not the "for profit" limitation should be eliminated without any substitute limitation depends upon whether the public interest in fostering the cultural life of the nation in situations where music or literary works are used noncommercially, or the author's right to control the use of his works, is paramount.

It could be argued that although there is a distinct and recognizable public interest in the enjoyment of the works of authors, that interest should in no case deprive the author of a potential source of income. From the author's point of view, it could also be said that he should have the right to determine which activities he desires to support by permitting the free use of his works.

In weighing the arguments for and against unlimited public performing rights, it should be remembered that the words "public performance" constitute a limitation and might be construed so as to protect the public against extreme cases of interference by the authors. If all other limitations were eliminated, the courts might tend to con

132 The last Vestal bill (note 53, supra) as amended on the floor of the House (note 57, supra) and on the floor of the Senate (note 63, supra); the first Sirovich bill (note 69, supra); and the Duffy bill (note 82, supra). 133 See note 96, supra.

134 See page 91, supra.

strue the term "public performance" narrowly, or might apply the doctrine of "fair use," so as to exclude from the author's control nonorganized, nonprofessional performances which do not in any way compete with the author's economic interests. But there would still be many nonprofit performances that are undoubtedly "public performances."

Only one of the legislative proposals, namely the Vestal bill as first introduced,135 contained no limitation on the author's public performing rights. This met with violent opposition and both the "for profit" limitation and other exemptions were adopted in later versions. During the hearings in 1952 on the bill resulting in the amendment of section 1(c) of the present law extending performing rights to nondramatic literary works, a representative of the authors argued that the rule governing dramatic works has caused almost no difficulties in the past, and that the same rule could be applied to other works without any invasion into legitimate public interests. 136 Congress, after hearing arguments pro and con, chose to maintain the "for profit" limitation.

(b) Dramatic works. The oldest of the performing rights, the right to perform a dramatic work in public, has never been subjected to the "for profit" or other limitations. One of the reasons frequently given for treating dramatic performances differently from performances of nondramatic works is that people who attend a performance of a dramatic work will be less likely to attend a second performance of the same work. Consequently, a free performance will cause the author a serious monetary loss by depriving him of a potential audience. other reason given is that the dramatic author depends more exclusively upon his public performing rights than other authors who derive substantial parts of their income from publishing, recording, and other rights. 137

An

The writer is unaware of any contention that the public performing rights in dramatic works should be limited by the "for profit" or other limitations. The charitable, educational, religious, and other groups that have sought the free use of music have never urged that dramatic works should be freely available for nonprofit performance.

II. EXHIBITION RIGHTS IN MOTION PICTURES

The law regarding performing rights in motion pictures (commonly referred to as "exhibition" rights) has developed differently from performing rights in literary and musical works, and presents somewhat different issues.

There being no specific provision in the statute for exhibition rights in motion pictures, the courts have had to adapt general statutory provisions, designed for other kinds of works, to accord protection to copyright owners of motion pictures against their unauthorized exhibition. The courts found no difficulty in applying to public exhibitions of dramatic motion pictures (photoplays) the statutory right in section 1(d) to perform dramatic works publicly, as was done in the Tiffany 138 and third Bijou Theatre 139 decisions. In the third

135 See note 45, supra.

186 See argument pp. 83, 84, supra.

137 See text to notes 14 and 15, supra.

138 Tiffany Productions v. Dewing, 50 F. 2d 911 (D. Md. 1931).

139 Metro-Goldwyn-Mayer Dist. Corp. v. Bijou Theatre Co., 3 F. Supp. 66 (D.C. Mass. 1931).