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offices and then further transmitted through concealed wires to the stores' ceiling speakers (the "location of the receiving apparatus" test).) Little Mole Music v. Mavarʼs Supermarket No. 4. Inc., 1989 Copyright Law Decisions 26,440 (N.D. Ohio 1988).

--An 1,824-square foot restaurant consisting of a lobby, lounge, banquet room, and two dining rooms with a combined seating capacity of 172 at 43 tables, employing a "Sanyo" portable am/fm radio/cassette player located in the lobby and connected to eight to ten 10-inch recessed ceiling speakers located in the restaurant dining rooms and lobby. (The court held that the restaurant was "not a small commercial establishment of the kind which qualifies for $110 (5) exemption protection"; that the radio broadcasts were "further transmitted"; and that "[w]hen all of the features of the system are considered...the system can only be characterized as the kind of commercial system specifically excluded from the coverage of S110(5).") Gnossos Music v. DiPompo, 13 U.S.P.Q. 2d 1539, 1542 (D. Me. 1989).

--A franchisee of "K-Bob's Steakhouses," which had a commercially-installed sound system consisting of a tuner connected to a public address system with eleven speakers. The restaurant was 7,000 square feet in size and grossed between $800,000 and $900,000 in revenues annually. (The court observed that "the fact the patrons could not always hear the music, or could only hear it in certain sections of the restaurant is not dispositive as it is the general atmosphere to which such music contributes which benefits therefrom.") Crabshaw Music v. K-Bob's of El Paso, Inc., 744 F. Supp. 763, 767 (W.D. Tex. 1990).

--An auto dealership with a sound system consisting of a radio receiver connected to at least four speakers recessed in the ceiling of the showroom and four public address horns mounted on light poles outside. Broadcast Music, Inc. v. Jeep Sales & Service Co., 747 F. Supp. 1190 (E.D. Va. 1990).

--A restaurant 1192 square feet in size (the public area was 880 square feet) with a sound system comprised of an amplifier, tuner, audio cassette deck and five recessed ceiling speakers

located between 30 and 45 feet from the amplifier.
(The court held that the receiving apparatus was
not of the kind commonly found in homes; the
broadcast performances of plaintiffs' songs were
"further transmitted" over the sound system from
the restaurant's lobby to its dining rooms because
"the courts have interpreted to further transmit'
to mean any dispersal of sound through a restau-
rant or other establishment"; and the restaurant
was of sufficient size to warrant the imposition
of liability.) Hickory Grove Music v. Andrews,
749 F. Supp. 1031, 1036-1038 (D. Mont. 1990).

--A bar and restaurant employing a radio-
over-speaker system consisting of a radio receiver
located behind the bar connected to 20 ceiling-
mounted speakers, which the court concluded was
not a "home-type system" and which was used to
"further transmit" the infringing performances.
U.S. Songs, Inc. v. Downside Lenox, Inc., 771
F. Supp. 1220, 1227 (N.D. Ga. 1991).

In 1990, ASCAP's principal competitor, Broadcast Music, Inc. (BMI), apparently sought to license at least two chain retail clothing store operators who employed radio-over-speaker systems. The systems consisted of inexpensive receivers connected to two speakers -- ceiling installed in one case, and box-type mounted on shelves in the other. Those licensing efforts resulted in two lawsuits in which the courts held that each store's radio-over-speaker system constituted "a single receiving apparatus of a kind commonly used in private homes." The decisions in the two BMI cases are Broadcast Music, Inc. v. Claire's Boutiques, Inc., 754 F. Supp. 1324 (N.D. Ill. 1990), aff'd, 949 F.2d 1482 (7th Cir. 1991), cert. denied, U.S. 60 U.S.L.W. 3769 (May 18, 1992); and Edison Bros. Stores, Inc. v. Broadcast Music, Inc., 760 F. Supp. 767 (E.D. Mo. 1991), aff'd, 954 F.2d 1419 (8th Cir. 1992), cert. denied, U.S. 60 U.S.L.W. 3769 (May 18, 1992). It should be noted that ASCAP had not sought to license performances by means of the radioover-speaker systems at issue in the two BMI cases.

Since the Supreme Court declined to review the appellate decisions in the two BMI cases, there exists some uncertainty as to the precise parameters of the exemption for radioover-speaker and other mechanical performances. That uncertainty was demonstrated by the recent decision in Cass County Music Co. y. Vasfi Muedini, 821 F. Supp. 1278 (E.D. Wis. 1993), in which the court, primarily considering only the receiver, applied the exemption to performances in a restaurant with a public dining area of approximately 1500 square feet, seating for 128 patrons, and a receiving apparatus consisting of a receiver and separate control panel connected to nine ceiling-installed speakers by

means of 70-volt transformers and commercial, parallel-wired circuitry. Although the decision is being appealed and is likely to be reversed, it demonstrates that a correct analysis of a claim of exemption under Section 110 (5) must focus upon the components of the entire receiving apparatus as well as the type of business seeking to avail itself of the exemption.

Law review articles exploring the meaning and scope of the Section 110(5) exemption include: Shipley, "Copyright Law and Your Neighborhood Bar and Grill: Recent Developments in Performance Rights and the Section 110(5) Exemption," 29 Ariz. L. Rev. 476 (1987); and "Note, Copyright Liability for Performances of Musical Works: Use of Background Radio Music in the Aftermath of Twentieth Century Music Corp. v. Aiken," 43 Washington and Lee L. Rev. 245 (1986). See also, 2 Nimmer On Copyright, $8.18[C][2] (1990).

Finally, the license agreements between ASCAP and its licensed broadcasters specifically exclude any further transmission of the stations' broadcasts. The relevant language in ASCAP's radio license agreements is as follows:

Nothing in this agreement shall be construed as authorizing Licensee to grant to others any right to perform the music publicly or reproduce in any manner any of the musical compositions licensed under this agreement, or as authorizing any

receiver of any radio broadcast to perform publicly or reproduce the same in any manner.

ASCAP's license agreements with its television licensees contain virtually identical language. Quite simply, this means that no radio or television station may represent to local businesses that its license agreement with ASCAP authorizes retransmissions of the station's broadcasts which otherwise must be licensed under the Copyright Law.

To conclude, the relevant statutory language, the legislative history, and cases interpreting analagous provisions of the Copyright Law make it clear that most public performances given by means of radio-over-speaker and large-screen television systems require proper authorization. For works in the ASCAP repertory, that authorization may be obtained through an ASCAP license agreement.

ASCAP'S LICENSING OF CONVENTIONS,
EXPOSITIONS. TRADE SHOWS AND SIMILAR EVENTS

There are quite literally thousands of conventions,

expositions, industrial shows, meetings, trade shows and similar events presented in the United States each year. These events vary in size, number of locations at which they may take place, and the manner in which music is performed in conjunction with such events. For example, a convention, exposition or trade show may have many or few exhibitors, and many or few persons who pay or register to attend the event. Activities at such an event all may be held at the same location, or at several locations simultaneously, or at different locations at different times. Music

may be presented by the organizer or sponsor of the event, by exhibitors, or both, and may be performed "live" by musicians and singers, or by mechanical means such as records, tapes, CDs, radio-over-loudspeaker systems, or elaborate, "multi-media"

audio-visual systems.

In its efforts to license all who should be licensed to perform music publicly, ASCAP seeks the most efficient, costeffective way to license music users in a manner which ensures that all similarly situated users will be treated uniformly. These principles reflect ASCAP's concern that it comply with § IV (C) of the 1950 Judgment which prohibits ASCAP from "discriminat[ing] in license fees or other terms and conditions between licensees similarly situated." ASCAP also seeks to minimize the administrative cost of our licensing activities in order to maximize the royalties available for distribution to our writer and music publisher members and to the members of affiliated

foreign performing rights societies.

In the case of conventions, trade shows and similar events, ASCAP uniformly has sought to license the sponsors of such events for all musical performances presented during and as part of their events, including those presented by the sponsors themselves, as well as those presented by exhibitors.

Given the diverse characteristics of conventions, trade shows and similar events, this approach makes the most practical sense because it is the only means by which all performances presented during and as part of such events can be authorized in a single transaction. It also recognizes the nature of a business in which sponsors realize an economic benefit from exhibitors who pay for the right to exhibit at events (as well as additional sums for event-related activities like advertising); and sponsors retain adequate authority to police their events to assure that exhibitors comply with applicable laws, rules and regulations.

If, however, ASCAP were to license exhibitors, multiple licenses would be required for each convention and trade show (a separate license for each exhibitor performing music), and then only those performances presented by licensed exhibitors would be authorized; all other unauthorized performances would be infringements of copyright. Because of the large number of events, and even larger number of exhibitors, if ASCAP were to license exhibitors rather than event sponsors, it is likely that fewer performances would be licensed overall; license fees would have to

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