only a few cases are found reported for infringement of this right under the prior law, and the outcome was not encouraging to the composer. But soon all this was to be changed. The increasing use of popular music, so vastly stimulated by the rise of the radio and motion picture industries, and the consequent falling off of revenue from the sale of copies, at last awakened the composer to the possibilities inherent in the performing right here secured.

Present Law-"For Profit”

The first attempts at securing a favorable judicial interpretation of the clause in question were not promising. For the Second Circuit Court of Appeals held that the term "for profit" meant a direct pecuniary charge to hear the performance, i.e. an admission fee. Church v. Hilliard, 221 F. 229 (1915); Herbert v. Shanley Co., 229 F. 340 (1916). Upon appeal to the United States Supreme Court, however, this view was shattered. Said the late Justice Holmes: "If the rights under the copyright are infringed only by a performance where money is taken at the door, they are imperfectly protected. If it pays, it pays out of the public's pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough." Herbert v. Shanley Co., 242 U. S. 591 (1917). Here the performances took place in a restaurant and hotel dining room for the entertainment of guests, but without direct charge for admission to hear it.

Rise of ASCAP

Naturally the composers were anxious to take full advantage of this clear-cut decision so much in their favor, but it soon became apparent that without adequate organization it was impossible to do so. Presently, however, this was accomplished through the able counsel of the late Nathan Burkan, of the New York Bar, by the formation of the American Society of Composers, Authors and Publishers (commonly known for short as ASCAP). Under the plan of operation the country is divided into several districts, and persons are employed in each district to listen-in wherever music is performed in public places. If they detect the performance of any composition controlled by the Society as licensee of the performing rights, the proprietor of such place is warned by local attorneys as to the law and ruling of the courts, and opportunity is given him to save him

self from the possibility of a suit for infringement involving payment of minimum damages of $250 with costs and attorney's fees, by the process of signing a contract to pay to the Society a certain sum proportioned to the character of the establishment, the probable extent of user, and its capacity to pay; in other words, what the traffic will bear. See Buck v. Case, 37 USPQ 696 (1938); and Hearings on Revision of Copyright Laws before Committee on Patents, 74th Congress, 2nd sess., 1936, pp. 3, 6, 45.

Numerous suits have been brought by the Society against recalcitrants in which the same principle announced by Justice Holmes was applied by the courts to performances of music in dance halls, theatres, cabarets and other places to which the general public is admitted, including transmission by broadcasting. See for example, Witmark v. Bamberger, 291 F. 776 (1923), where the defendant merely used the slogan "L. Bamberger & Co., One of America's Great Stores, Newark, N. J.," before and after the transmission of the copyrighted song to the general public by radio; also Remick & Co. v. General Electric Co., 16 F.2d 829 (1926), involving the use of music in broadcast program to stimulate sale of radio products.

Radio Receiving Sets-Tuning In

In the celebrated case of Gene Buck (acting as president of ASCAP) v. Jewell-La Salle Realty Co., 283 U.S. 191, 9 USPQ 17 (1931), the Supreme Court, on certification from the Eighth Circuit Court of Appeals, held that the acts of the proprietor of a hotel in making available to its guests by means of radio receiving sets and loud speakers the initial rendition of copyrighted music by a neighboring broadcasting station constituted performance of the original program and not merely audible reproduction thereof; and further that fore-knowledge of the selections to be played was immaterial because intention to infringe is not essential under the Copyright Act; and that one who merely "tunes in" on his receiving set actually performs the work in the statutory sense of the term, and therefore runs the risk of incurring a suit for infringement if he does so in public for the purpose of commercial profit. The Circuit Court of Appeals accordingly found that the specific acts of the proprietor of the hotel constituted a "public performance for profit." (10 USPQ 70).

The English courts have ruled to the same effect. Performing Right Society v. Camelo, 3 All Eng. Rep. 557 (1936). In an earlier English case, Hawkes v. Paramount Film Service, Ltd., 151 L.T.R. 298 (1934), the defendant exhibited a pictorial news film which included the ceremony of opening a hospital school by the Prince of Wales. When the boys marched past, the band played the "Colonel Bogey" march, a portion of which was incidentally reproduced in the sound film, but the court held this sufficient to infringe the plaintiff's right of public performance, since under the English law it need not be "for profit” in the commercial sense, as required by our law.

If the initial broadcasting "performance" takes place under an unrestricted license from the owner of the performing rights, it seems probable that such license would impliedly extend also to its commercial reception and distribution by others. Buck v. Debaum, 40 F.2d 734 (1929); and footnote No. 5 to the JewellLa Salle case wherein Justice Brandeis said: "If the copyright composition had been broadcast by Duncan with plaintiff's consent, a license for its commercial reception and distribution by the hotel company might possibly have been implied (citing the Debaum case). 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."

But not so where the original broadcaster is licensed solely for his own performance. Society of European Stage Authors & Composers, Inc. v. New York Hotel Statler Co., 34 USPQ 6 (1937). The only difference between the facts in this case and in Buck v. Jewell-La Salle, supra, was that in the latter the broadcast programs were reproduced in the public rooms and lobbies of the hotel as well as in the private guest rooms, while in the former the master receiving sets of the hotel were connected only with the bedrooms; which was held nevertheless to be a public performance for profit.

Performance in Connection with Motion Pictures

Of course this right also applies to the use of musical compositions in connection with motion pictures. The synchronization thereof in a sound film does not, apart from special grant, release the exhibitor from liability to pay royalty due the copyright owner of the performing rights. Famous Music Corp. v.

Melz, 42 USPQ 573 (1939). It can be readily seen how modern conditions greatly complicate the situation as compared with the relatively simple conditions of a generation ago, and special care must be exercised in drafting contracts in relation to these rights. The old court decisions cannot always be relied upon in the general movement of commercial life and must be taken with the customary grain of salt.

Note that the right of public performance "for profit" is granted "upon complying with the provisions of this Act", from which it seems fair to conclude that the right of public performance even without "profit", which attached to musical compositions in which copyright was already subsisting when the present Act went into force, July 1, 1909, was left undisturbed by the present Act so far as the original copyright is concerned. This upon the principle of non-retroactivity of statutes. But upon renewal under the present Act, which is a new grant of copyright "upon complying with the provisions of this Act," it would seem that the substituted rights granted by the present Act. would attach to such work for the second term and, consequently, the performance would have to be "for profit" to constitute infringement following such renewal.

Statutory Exceptions from Liability for Performance

The only express exceptions from liability for unauthorized performance of music are:

(1) The reproduction of music by means of coin-operated machines where there is no admission fee to the place of rendition, as provided in the last paragraph of section 1(e). The courts have construed this to mean that the machine must be actually operated by the deposit of coin in the boxes provided for that purpose, at the time of rendition, and not otherwise, as by disconnecting the wires from the boxes and controlling the operation of the machine without the use of coins. Buck v. Kelly, 7 USPQ 164 (1930). In other words, this exception from the general rule is to be strictly construed in favor of the copyright proprietor.

(2) In the case of certain religious or secular works, where the performance is given for charitable or educational purposes and "not for profit", as provided in section 28. In commenting upon this clause, the Second Circuit Court of Appeals remarked that it must contemplate the charge of an admission fee, because

if the performance is really not for profit it would be perfectly lawful. "We think", said the court, "it was intended to permit certain high-class religious and educational compositions to be performed at public concerts where an admission fee is charged, provided the proceeds are applied to a charitable or educational purpose." Church v. Hilliard, 221 F. 229 (1916). In other words, it means not for private or commercial profit.

Now, the cumulative result of all these favorable decisions established the composers in a well-nigh impregnable position, of which they proceeded to take full advantage. But with such an extensive national organization, necessarily acting through local agents and attorneys, certain murmurs of complaint arose here and there, due largely perhaps to overzealous activity on the part of these agents in reaching down too far among the small users, rather than to the purpose and intent of the Society itself, whose interest obviously lay in extending instead of drying up the sources of income from the performing rights. These murmurs, however, gradually grew in volume and intensity, resulting in legislation in several states aimed directly at hampering the operations of ASCAP by imposition of taxes and penalties, prohibiting the issue of "blanket" licenses, and in some cases making it unlawful for copyright owners to combine in any manner for the purpose of licensing their compositions. Battle of Broadcasters v. ASCAP

But the main battle developed with the broadcasters, by reason of their more extensive use of copyright music in commercial programs and the periodic increase of the rates imposed by ASCAP to keep pace with the increased revenues of the broadcasters. One of the chief bones of contention was the system of blanket licenses to cover the entire repertoire of music controlled by ASCAP, including the method of computing the fees, which, because of the gross revenue basis of assessment, resulted in what seemed, as contended by the broadcasters, like compelling them to pay for music not used in their programs. Matters came to a head when the time arrived for the renewal of the licenses at the close of the last periodic adjustment in the fall of 1940. The broadcasters refused to meet the terms of ASCAP and proceeded to organize an independent music service of their own, Broadcast Music, Inc., which, during 1941 supplied its members from a reservoir of music garnered from