"That, under the Copyright Act, a public performance may be
for profit, though no admission fee is exacted or no profit
actually made, is settled by Herbert v. Shanley, 242 U.S.
591 ... It suffices, as there held, that the purpose of the
performance be for profit, and not eleemosynary; it is
against a commercial, as distinguished from a purely philan-
thropic, public use of another's composition, that the statute
is directed. It is immaterial in our judgment, whether that
commercial use be such as to secure direct payment for the
performance by each listener, or indirect payment, as by a
hat-checking charge, when no admission fee is required, or a
general commercial advantage, as by advertising one's name
in the expectation and hope of making profits through the
sale of one's products, be they radio or other goods."

In later cases the question of whether radio broadcasting of music was "for profit" was considered in other circumstances where the commercial purpose was less evident. It would appear to be irrelevant here to review those cases. We note simply that broadcasts by commercial stations have generally been regarded as being for profit, either because they are operated as commercial businesses or because they carry commercial advertising, while broadcasts by stations licensed as noncommercial educational stations have generally been regarded as being not for profit.

A.2.4.2 Reception of Broadcasts as Performance. The development of broadcasting also gave rise to a more difficult question: was the reception of a broadcast (as the question arose initially, of a radio broadcast of music) in a place where the performance being broadcast would be reproduced, by means of the receiving equipment, for the entertainment of the public, a further performance under the 1909 Copyright Act?

This question reached the U.S. Supreme Court in the famous case of Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931). 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 in the hotel. The Court held that the hotel's reproduction of the broadcast performance, through its receiving set and loud speakers, for the entertainment of its guests, was itself a public performance under the statute. Because of the novelty of the technology involved and the far-reaching effect of the decision, and the parallel with the question of cable television retransmission of broadcasts which the Supreme Court ruled on more than 35 years later, the reasoning of the Court in the Jewell-LaSalle decision, by Justice Brandeis, merits quotation at some Tength:

"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, it is not denied that such broadcasting may be within the scope of the act... 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...

"The defendant next urges that it did not perform because there can be but one actual performance each time 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...

"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... 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 risk that in so doing he may infringe the performing rights of another...

"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. (In footnote:

"Hence it is urged that the radio receiving set

A-42

is no more than a mechanical or electrical ear trumpet for
the better audition of a distant performance.") We are satis-
fied that the reception of a radio broadcast and its trans-
lation into audible sound is not a mere audition of the
original program... Radio waves are not audible. In the
receiving set they are rectified; that is, converted into dir-
ect 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. The transmitted radio waves
require a receiving set for their detection and translation
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 neces-
sary for its adequate reception and distribution. Reproduction
in both cases amounts to performance... 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 de-
vices 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 as orchestra to furnish the
music and that where, by means of the radio set and loud-
speakers here employed, it furnishes the same music for the
same purpose.

This opinion of the Supreme Court in the Jewell-LaSalle case presents a prime example of analogizing the operation and effect of new technological devices with those of previously known devices that the law has already dealt with. In this opinion we see the Supreme Court taking much the same philosophical approach, to the adaptation of the copyright statute to new technology, as we have seen earlier in the court decisions on motion pictures, in the concurring opinion of Justice Holmes in White-Smith, in the judicial recognition of the possible extension of copyright to sound recordings in the Capitol Records case, and implicitly in the extension of the copyright statute by Congress to the products of new technology and their use.

It may be noted briefly that the ruling in Jewell-LaSalle was carried a step farther in the case of SESAC v. New York Hotel Statler Co., 19 F. Supp. 1 (S.D.N.Y. 1937). In the latter case, the hotel received the broadcast programs of two stations on a master receiving set and transmitted those programs to speakers in each of its individual guest rooms; each guest could turn the speaker in his room on to his choice of two programs or could turn it off. Relying on the Remick and Jewell-LaSalle decisions, the court held the transmission by the hotel of the copyrighted music in the broadcasts was a public performance for profit.

A.2.4.3 Wire Transmissions. Mention should be made of a process of transmitting performances of copyrighted works somewhat similar, in its effect, to broadcasting; that is, the use of wire systems for supplying performances of music from a central source to a number of subscribing business establishments for the entertainment of their patrons. (A well-known system of this kind is Muzak.) In Leo Feist, Inc. v. Lew Tendler Tavern, 162 F. Supp. 129 (E.D. Pa. 1958), both the company that supplied the music by transmissions over leased wires and the tavern in which the music was received and played over loudspeakers were held to have given public performances for profit. Citing several earlier cases, including Jewell-LaSalle and SESAC, the court said:

"The circumstance of the novelty of the combination of mechani-
cal means involved, however, does not appear to vary the
principles established in the three cases heretofore cited.
For that matter, the numerous cases of musical infringement
under the act involve infinite combinations of means of
musical performance. The principles applied, however, are
those of the same leading cases, despite the individual dif-
ferences as to where and how the music is produced, transmit-
ted, and made audible."

The foregoing decision of the District Court in the Lew Tendler case was affirmed by the Circuit Court on appeal: 267 F. 2d 494 (3rd Cir. 1959).

(The question of retransmissions of broadcasts as public performances of the works in the broadcast was to be raised again years later in the context of retransmissions by cable television systems. We shall consider the cases dealing with cable television below.)

A.2.4.4 Copyright Act of 1976. The recently enacted revision of the copyright law gives statutory confirmation to the results reached in the decisions reviewed above concerning broadcasts and wire transmissions

of performances of copyrighted works, and their reception and retransmission. Thus, the 1976 Act provides that:

In the case of enumerated categories of works capable of
performance, the copyright owner has the exclusive right
'to perform the copyrighted work publicly" (sec. 106(4).
(This right is subject to certain exemptions provided for
elsewhere in the Act which need not be detailed here).

To "perform" a work is defined as meaning "to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible" (Sec. 101).

The exclusive right of the copyright owner "to display the
copyrighted work publicly" is specified for the first time
in the new statute with respect to enumerated categories
of works that may be so displayed (sec. 106(5)). (This
right of public display is subject to some of the same
exemptions as the right of public performance.)

To "display" a work is defined as meaning "to show a copy
of it, either directly or by means of a film, slide,
television image, or any other device or process or, in
the case of a motion picture or other audiovisual work,
to show individual images nonsequentially" (sec. 101).

To perform or display a work "publicly" is defined as
meaning:

"(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) To transmit or otherwise communicate a performance or
display of the work to a place specified by clause
(1) or 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" (sec. 101).

To "transmit" a performance or display is defined as meaning "to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent" (sec. 101).