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action against retail clothing and shoe store chain alleging unlicensed broadcast. The United States District Court for the East. ern District of Missouri. 760 F.Supp. 767, John F. Nangle. Senior District Judge. found that chain's conduct came within "homestyle exemption" to copyright law. Assignee appealed. The Court of Appeais. Bowman. Circuit Judge. held that for purposes of determining whether establishment qualifies for homestyle exemption. appropriate focus is on radio equipment used in establishment. rather than total amount of equipment owned by store owner in various store locations. or total square footage of establishment, or owner's ability to pay for commercial background music service.

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style exemption to exclusive performance rights for music copyrights, size of estab. lishment is irrelevant: under statute. question of whether establishment qualifies for exemption determined solely with reference to type of radio equipment used by estabishment. 17 U.S.C.A. § 110(5).

1. Copyrights and Intellectual Property 66

In determining whether particular establishment qualifies for homestyle exemption to exclusive performance rights for music copyrights, issue of whether establishment's owner is able to pay for commercial background music service is irrelevant: under statute dealing with homestyle exemption. determination as to whether establishment qualifies for exemption is made solely with reference to type of radio equipment used in that particular establishment. 17 U.S.C.A. § 110(5).

Johnathan Zavin, New York City, argued (Scott M. Martin and Judith Saffer, New York City, Jim J. Shoemake and Kurt S. Odenwald, St. Louis, Mo., on brief), for appellant.

Michael A. Kahn, San Francisco, Cal., argued (Katharine Livingston and J. Daniel Sharp, San Francisco, Cal., and Robert T. Haar, St. Louis, Mo., on brief), for appellee.

Before MCMILLIAN, JOHN R. GIBSON and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Broadcast Music, Inc. (BMI), appeals the District Court's decision to grant summary judgment in favor of Edison Brothers Stores, Inc., in Edison's suit for a declaratory judgment that its stores qualify for an exemption from the vesting of exclusive rights of performance in the owners of copyrighted works. See Edison Bros.

1. The Honorable John F. Nangle, Senior United States District Judge for the Eastern District of Missouri.

2. In its complaint, Edison also claimed that BMI was equitably estopped from attempting to collect license fees because of the prior dealings of the parties. Complaint at 19, reprinted in

Stores. Inc. v. Broadcast Music. Inc., 750 We affirm F.Supp. 767 (E.D.Mo.1991).

The relevant facts are net in dispute. BMI is a performing rights organization that collectively licenses. as assignes of the rights of its copyright-holding ciients 1pm. marily publishers and songwriters) the public performance of such clients' p righted works.

Edison owns a chain of approximately 2500 retail clothing and shoe stores doing business as Chandiers, Jeans West. Fastion Conspiracy, Size 5-7-9 Shops. J. Rig. gins. Bakers. the Wild Pair, and others. Most of Edison's stores operate a single radio receiver with two attached neit speakers to play radio broadcasts in the stores for the enjoyment of employees and customers. The equipment is simple and inexpensive. Edison has promulgated a ra. dio usage policy and requires the adherence of these stores to the rules therein. The District Court summarized the policy as follows:

1. Only simple, low grade radio-only receivers are to be used.

2. Only two speakers may be attached
to a radio receiver.

3. The speakers must be placed within
15 feet of the receiver.
4. Speakers that are built into the walls
or ceilings must not be used. Only
portable box speakers are allowed.
3. [Edison will advise each store man

ager that they are not to use tapes. cassettes, or any other type of recording equipment in their stores. They are to play the radio only. Edison Bros. Stores, 760 F.Supp. at 76970, quoted in Brief of Appellee at 7. BMI has submitted no evidence that any of the Edison stores to which the radio usage policy applies have failed to comply with it

Approximately 220 of Edison's stores have more sophisticated audio and video

Joint Appendix A-7. A-13. The District Court did not reach this issue. Edison asks this Court to remand for consideration of the estoppel issue should we reverse the decision of the Dis trict Court. Because we are affirming that deci. sion. a remand is unnecessary.

In

systems or subscribe to commercial music services. Edison pays license fees to BMI or to commercial services licensed by BMI or other performing rights organizations for the music played in these stores. recent years BMI approached Edison about licensing the remaining stores in its chain. Negotiations between the two parties evidently broke down, and Edison filed suit in District Court seeking declaratory relief. The court, agreeing with Edison's position, declared that the radio systems in use at Edison's unlicensed stores qualified for the so-called homestyle exemption to the exclusive performance rights that copyright owners enjoy under federal law. BMI appeals.

In reviewing on appeal a district court's decision to grant summary judgment, we are governed by the same standard that governed the court below. McCuen v. Polk County, Iowa, 893 F.2d 172, 173 (8th Cir.1990). We therefore will affirm the District Court unless we find there remain genuine issues of material fact, in which case & trial would be required, or that the District Court erred in deciding that Edison was entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). BMI and Edison both filed motions for summary judgment and thus apparently agree there are no disputed issues of material fact. Therefore we are left with a purely legal question involving interpretation of the Copyright

Act.

I.

Under the Copyright Act, the owner of the copyright of a musical work has the exclusive right, among other rights, to per form the copyrighted work publicly. 17 U.S.C.A. § 106(4) (West Supp.1991). The Act, however, provides exemptions for cer tain performances. 17 U.S.C. § 110 (1988). Among the acts that are not "infringe ments of copyright" is the following:

communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless

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(A) a direct charge is made to see or hear the transmission: or

(B) the transmission thus received is further transmitted to the public{.]

Id. § 110(5). The issue before the District Court, and now before us, is whether Edison's 2000-plus radio receivers, each with two attached speakers and each operated in a different store. qualify for this homestyle exemption. BMI insists that, for several reasons. the exemption is unavailable to Edison.

Clearly, each radio in an Edison store is a "single receiving apparatus" and is "communicat[ing] ....... a transmission embodying 2 performance of a work by the public reception of the transmission." The receiv ers in the Edison stores are tuned to local radio stations and play anything and everything, including musical works, that the radio stations broadcast while the stores receivers are on. No "direct charge is made to see or hear the transmission," and there is no contention that the broadcast is "further transmitted to the public" beyond the stores.

The sticking point for the parties, and the basis for BMI's first argument, is Edison's multiple locations, each employing a single receiver and two speakers in conformity with the company's radio usage policy. BMI argues that the statutory requirement that the transmission be received "on a single receiving apparatus of s kind commonly used in private homes" is not satisfied by this arrangement; al though BMI concedes that an individual receiver and speaker set-up in one store may fit within the exemption, it takes the position that Edison lost section 110(5) protection as soon as it installed the second receiving apparatus in another of its stores. BMI contends that the statute requires that we consider the equipment of any one owner in toto, and not on a per-store basis. when we decide whether or not the exemption applies and find (as of course we would if we did as BMI suggests) that Edison is not in fact operating a "single receiving apparatus" within the meaning of

the statute.

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[1] We cannot accept BMI's interpretation of section 110(5), as it defies the plain language of the statute. Section 110(5) does not say that a person, company, or other entity must own or operate only a single receiver to qualify for the exemp tion: it refers to "the communication of a transmission embodying a performance of a work" (emphasis added). We think it obvious that the language refers to a single location. "The statute does not ask how many receiving apparatuses were used to receive a number of different works. The language of the statute thus strongly suggests that the proper analysis should be limited to the area where a single work is performed." Broadcast Music, Inc. v. Claire's Boutiques. Inc., 949 F.2d 1482, 1490 (7th Cir.1991). If we were to embrace BMI's argument and reach the result it suggests, the equipment used in any Edison store, including those stores that have more sophisticated equipment, wouid be attributable to each of the other stores owned by Edison for purposes of the Copyright Act. Such a result does not comport with the statutory language.

3

[2] We agree with the District Court "that it is not appropriate to focus on the number of stores involved, but rather on whether each store duplicates the require ments of the homestyle exception." Edison Bros. Stores, 760 F.Supp. at 770. There is no evidence in the record that any of Edison's unlicensed stores fail to meet the statutory criteria for entitlement to the section 110(5) exemption.

BMI claims that the legislative history of the exemption supports its multiple receiver argument. Our reading of the legisiative history reveals nothing that convinces us that each store in a retail chain should not be considered for the homestyle exemp

3. In Broadcast Music, Inc. v. Claire's Boutiques, Inc., 949 F.2d 1432 (7th Cir.1991), the Seventh Circuit considered some of the same issues now before us and reached a result consistent with our decision today.

4. Edison asserts that the record on the size of its stores is inadequate for BMI to sustain this claim factually, regardless of its legal viability. See Brief of Appellee at 33 & n. 13. BMI. on the other hand, claims that the record demonstrates

BMI also bases its next argument on the legislative history of the enactment. 2Mi is not asking us to use legislative history to assist in clarifying an ambiguous statute: we are being asked to use legislative history to rewrite the section 110(5) exemption to add new requirements.

[3] BMI contends that the physical size of Edison's stores removes the chain and its individual stores from the protection of the section 110(5) exemption. In order to reach such a resuit, BMI would have us read into the exemption a requirement that total space in the stores must not exceed 1055 square feet, with the area open to the public not to exceed 620 square feet. Brief of Appellant at 9, 11. The basis for this argument is a Supreme Court decision in a copyright case antedating the enactment of section 110(5) and the Report of the House Judiciary Committee relating to that sec tion.

In Twentieth Century Music Corp. t. Aiken. 422 U.S. 151. 95 S.Ct. 2040. 45 L.Ed.2d 84 (1975), the Supreme Court had before it the issue of whether the proprie

the average square footage of Edison's uniicensed stores is 2268 square feet, with 300 :0 :200 square feet oper. to the public. Reply Brief of Appellant at 18 n. 11. Clearly this is a disputed question of fact. but in view of our holding that a store's physical size is not a factor that requires consideration under the stature. it is irrelevant and does not require resolution in order for us to affirm the District Court's entry of summary judgment in favor of Edison.