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photographs in 1870. This was the situation in Edison v. Lubin. that case, the District Court said:

'...if... the law is defective, it should be altered by Con-
gress, not strained by the courts."

On the other hand, the Circuit Court of Appeals, in reversing the District Court, said:

"When Congress... saw fit...to extend copyright protection to
a photograph...it is not to be presumed it thought such art
could not progress, and that no protection was to be afforded
such progress. It must be recognized there would be change
and advance...

In 1912, Congress amended the copyright statutes to include "motionpicture photoplays" and "motion pictures other than photoplays" as protected classes of works. The 1909 revision had made no mention of these concepts, although they were well-known at the time. After 1912, then, there was protection for motion pictures against unauthorized copying, but due to the specific language of the statute, it was clear that there was protection against unauthorized "public performances" (as distinguished from copying) only for dramatic and musical works. The question whether a motion picture photoplay was a dramatic work arose therefore through litigation.

Specifically, this question arose in Tiffany Productions v. Dewing, (1931), and in M. G. M. v. Bijou Theatre, (1933). The effect of both cases was to insure that a motion picture photoplay was legally defined as a type of dramatic work and that the protection of copyright was accorded to public performances or exhibitions of this type of motion picture.

In the Tiffany Productions case, the Court (holding that a motion picture photoplay was a form of a dramatic work) said that:

"The statute must be given a sensible meaning in its applica-
tion to modern invention, expressly within the scope of the
statute."

In the M. G. M. case, the District Court, in a decision later countermanded, had said:

'... the effect of a new invention in any given field seems to
be a matter for legislative consideration, rather than for the
extension of existing statutes by judicial construction."

3.3.1 Sound Tracks in Motion Pictures

"Talking motion pictures began to be produced about 1924, some 12 years after motion pictures were added to the copyright statutes as a protected class of work. Despite the lack of explicit copyright protection,

the industry groups concerned tacitly accepted and operated on the premise that the sound track is protected as an integral part of the motion picture; and this premise appeared then and continues to appear to be logically valid since the pictures and sound together are necessary to constitute the complete work and to convey its artistic effect. This concept was given some judicial validity in the case of L. C. Page & Co. v. Fox Film Corp., (1936); in which the Court stated that "as the plaintiff well says, 'talkies' are but a species of the genus motion pictures."

In 1971, in tine House Report on the amendment to the copyright statute which extended nrotection to sound recordings excepting those sounds accompanying a motion picture, a statement on sound tracks was made. The House Report stated:

"The exclusion [of sound tracks from the protection accorded
sound recordings] reflects the... opinion that sound tracks or
audio tracks are an integral part of the "motion pictures
already accorded protection...and that the reproduction of
the sound accompanying a motion picture is an infringement
of copyright in the motion picture.

Finally in the 1976 General Revision, it was clearly stated that the definition of motion picture included accompanying sounds, and that the copyright in a motion picture included the right to perform it publicly by making its images visible or its sounds audible.

Thus, from 1924 until 1976, more by general unstated agreement than by actual law or judicial interpretation, sound tracks were accepted as an integral part of motion pictures.

3.4 RADIO AND TELEVISION BROADCASTING

In 1909, radio and television broadcasting were unknown and a public performance was thought of as a performance given in the presence of a group of persons assembled within sight or hearing of the performers, When the use of the copyrighted music and plays in radio broadcasts became common in the early 1920's, the question arose whether broadcasts of copyrighted works were public performances within the scope of the 1909 Statute.

This question was considered in the case of Jerome H. Remick & Co. v. American Automobile Accessories Co. in 1925 with respect to a radio broadcast of a musical work. The court held that the broadcast did constitute a public performance, stating:

"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 comes within the purview of the statute, it is not
by that fact alone excluded.... The statute may be applied to
new situations not anticipated by Congress, if, fairly con-
strued, 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 narrow-
ly construed as to permit their evasion because of changing
habits due to new inventions and discoveries.... The artist
[in a radio broadcast T is consciously addressing a great,
though unseen and wideTy scattered audience, and is therefore
participating in a public performance."

The ruling in this case was generally accepted in practice by broadcasters and other concerned parties. In addition, the ruling in this case determined that the public performance was "for profit" if the broadcast was over a commercial station that was used as a medium for advertising, regardless of the fact that the broadcast listeners did not pay an admission fee.

A similar result ensued in the case of Leo Feist, Inc. v. Lew Tendler Tavern in 1958, which extended the public performance concept from broadcasting to wire transmissions. In this case, music transmitted over wire from a central location to a restaurant and then made audible there for the benefit of restaurant patrons was found to be a public performance for profit.

The 1976 Act codified these results by assigning the copyright owner the exclusive right (with certain exemptions) of public performance and display; and by including in the definition of public performance and display transmission or communication to the public "by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times" (Section 101).

3.4.1 Retransmissions of Broadcasts

A question that was to have very important ramifications 35 years later for cable television retransmissions was raised in the case of Buck v. Jewell-La Salle Realty Co. in 1931 before the U.S. Supreme Court. In that case, a hotel maintained a master radio set which was wired to loud speakers from which the radio programs could be heard in all of the public and private rooms of the hotel. The Court held that the hotel's reproduction of the broadcast performance, through its receiving set and Loudspeakers, for the entertainment of its guests, was itself a public performance under the 1909 Statute and therefore not exempt from the implications of the Statute for royalty payment. The opinion in this case by Justice Brandeis for the Court is quoted from extensively in Section A.2.4.2 of Appendix A of this report and is a prime example of reasoning by analogy in determining the law with respect to new technological devices not previously considered by Congress.

Another similar casę which confirmed the copyright owners' rights to retransmissions in a hotel situation was SESAC v. New York Hotel Statler Co. decided in 1937.

3.5 COPYRIGHT IN CABLE TELEVISION RETRANSMISSIONS

By the middle of the 1960s, commercial enterprises had sprung up whose functions were to provide TV viewers with programs that the viewers were unable to receive satisfactorily with standard antennae. This industry, because it serviced subscribers via cable, a non-broadcast mode, became known as CATV, community antenna television, or cable television. The industry obtained much of its program material from broadcasted TV which it acquired with more sensitive receiving equipment and more sophisticated or better situated antennae than its subscribers were capable of providing for themselves individually.

In the opinion of copyright owners, significant copyright problems existed. The primary over-the-air boradcasters obtained licenses from copyright owners for the motion pictures, plays, music, and other works that they broadcast. Was the retransmission of the broadcasted programs by the cable system to its subscribers to be treated as a further public performance of the copyrighted works which infringed the copyright owners exclusive rights?

This question came before the courts in 1966 through 1968 in the case of United Artists Television, Inc. v. Fortnightly Corp. The District and Circuit Courts held for the copyright owners, relying on the previous decisions described above, i.e. Remick, Jewell-LaSalle, and SESAC, that the retransmission, as a public performance for profit, was covered by the Copyright Act then in force. It is not surprising, in light of previous decisions quoted, that the District Court in this case spoke about "accomodating the statute to the realities of modern science and technology."

However, to the surprise of many, the Supreme Court reversed the lower court findings by essentially determining that cable television program providers were acting as viewers' agents rather than as secondary producers. The Court reasoned that:

"...while both broadcasters and viewers 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.

"When CATV is considered in this framework, we conclude that
it falls on the viewer's side of the line...."

The Court carried forward this precedent-breaking decision and similarly found no infringement in the 1974 case of CBS v. Teleprompter. The issue in the latter case was a possible distinction between the retransmission over cable of local signals that could have been received over the air by cable subscribers and the retransmission of far distant signals not originally intended for the cabled locale. The Supreme Court found no distinction and determined that there was no infringement in either case.

The more complete discussion of Section A.2.6 of Appendix A provides some rationales for these Supreme Court decisions. As noted there, a major element in the decisionmaking appeared to be a desire to prevent the CATV industry from being retroactively liable for royalties and infringement damages. The majority opinion in the Fortnightly decision had said in a footnote, that a decision consistent with Jewell-La Salle would be such "as retroactively to impose copyright liability where it has never been acknowledged to exist before." Here the Court is implying that a judicial decision for the copyright owners (unlike a legislated decision) could not cause royalties to flow from that time on, but would be forced to require that the CATV industry be responsible for all past royalties it should have paid. These back royalties might be large enough to destroy many of these small operations.

The fact that Congress was considering major revisions to the Copyright Act during the times of the Fortnightly and Teleprompter litigations cannot be ignored as a factor in the Supreme Court's decisionmaking. As noted in Section A.2.6, both the majority and dissenting opinions in Fortnightly, as well as in the lower court decisions, in both Fortnightly and Teleprompter, took cognizance of the on-going considerations by Congress of the copyright problem of cable retransmissions in the context of the general revision of copyright law. Justice Fortas, in his dissent in Fortnightly had commented:

"Our major object, I suggest, should be to do as little damage
as possible to traditional copyright principles and to busi-
ness relationships, until the Congress legislates and relieves
the embarrassment which we and the interested parties face.'

Similarly, the Circuit Court of Appeals noted in Teleprompter:

"The complex problems represented by the issues in this case
are not readily amenable to judicial resolution....We hope
that the Congress will in due course legislate a fuller and
more flexible accomodation of competing copyright, anti-trust,
and communications policy considerations, consistent with
the challenge of modern CATV technology."

Thus the judiciary in general, saw the issues as more complex than a simple extension of principle as embodied in Buck v. Jewell-La Salle. The interaction of basic communications policy

in the public interest and the economic interests of the concerned parties demanded a legislative solution. Ultimately, the approximately ten years of negotiation among the various concerned parties resulted in the provisions of Section 111 of the 1976 General Revision of Copyright Law.

This 1976 General Revision makes cable retransmissions subject to the restrictions of copyright, thereby validating at least the principle of the dissent in Teleprompter which was based on the precedent of Buck v. Jewell-La Salle. However, a cable company now may obtain a compulsory license for retransmission of programs from those stations whose

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