MR. JUSTICE STEWART delivered the opinion of the Court.
The question presented by this case is whether the reception of a radio broadcast of a copyrighted musical composition can constitute copyright infringement, when the copyright owner has licensed the broadcaster to perform the composition publicly for profit.
The respondent George Aiken owns and operates a small fast-service food shop in downtown Pittsburgh, Pa., known as "George Aiken's Chicken." Some customers carry out the food they purchase, while others remain and eat at counters or booths. Usually the "carry-out" customers are in the restaurant for less than five minutes, and those who eat there seldom remain longer than 10 or 15 minutes.
A radio with outlets to four speakers in the ceiling receives broadcasts of music and other normal radio programing at the restaurant. Aiken usually turns on the radio each morning at the start of business. Music, news, entertainment, and commercial advertising broadcast by radio stations are thus heard by Aiken, his employees, and his customers during the hours that the establishment is open for business.
On March 11, 1972, broadcasts of two copyrighted musical compositions were received on the radio from a
The petitioners sued Aiken in the United States District Court for the Western District of Pennsylvania to recover for copyright infringement. Their complaint alleged that the radio reception in Aiken's restaurant of the licensed broadcasts infringed their exclusive rights to "perform" their copyrighted works in public for profit. The District Judge agreed, and granted statutory monetary awards for each infringement. 356 F.Supp. 271. The United States Court of Appeals for the Third Circuit reversed that judgment, 500 F.2d 127, holding that the petitioners' claims against the respondent were foreclosed by this Court's decisions in Fortnightly Corp. v. United Artists, 392 U.S. 390, and Teleprompter Corp. v.
The Copyright Act of 1909, 35 Stat. 1075, as amended, 17 U. S. C. § 1 et seq.,
Accordingly, if an unlicensed use of a copyrighted work does not conflict with an "exclusive" right conferred by the statute, it is no infringement of the holder's rights. No license is required by the Copyright Act, for example, to sing a copyrighted lyric in the shower.
When this statutory provision was enacted in 1909, its purpose was to prohibit unauthorized performances of copyrighted musical compositions in such public places as concert halls, theaters, restaurants, and cabarets. See H. R. Rep. No. 2222, 60th Cong., 2d Sess. (1909). An orchestra or individual instrumentalist or singer who performs a copyrighted musical composition in such a public place without a license is thus clearly an infringer under the statute. The entrepreneur who sponsors such a public performance for profit is also an infringer— direct or contributory. See generally 1 & 2 M. Nimmer, Copyright §§ 102, 134 (1974). But it was never contemplated that the members of the audience who heard the composition would themselves also be simultaneously "performing," and thus also guilty of infringement. This much is common ground.
With the advent of commercial radio, a broadcast musical composition could be heard instantaneously by an enormous audience of distant and separate persons operating their radio receiving sets to reconvert the broadcast
See also M. Witmark & Sons v. L. Bamberger & Co., 291 F. 776 (NJ); Jerome H. Remick & Co. v. General Electric Co., 4 F.2d 160 (SDNY); Jerome H. Remick & Co. v. General Electric Co., 16 F.2d 829 (SDNY); Associated Music Publishers, Inc. v. Debs Memorial Radio Fund, 141 F.2d 852 (CA2). Cf. Chappell & Co., Ltd. v. Associated Radio Co. of Australia, Ltd.,  Vict. L. R. 350; Messager v. British Broadcasting Co., Ltd.,  2 K. B. 543, rev'd on other grounds,  1 K. B. 660, aff'd,  A. C. 151. See generally Caldwell, The Broadcasting of Copyrighted Works, 1 J. Air L. 584 (1930); Note, 75 U. Pa. L. Rev. 549 (1927); Note, 39 Harv. L. Rev. 269 (1925).
If, by analogy to a live performance in a concert hall or cabaret, a radio station "performs" a musical composition when it broadcasts it, the same analogy would seem to require the conclusion that those who listen to the broadcast through the use of radio receivers do not perform the composition. And that is exactly what the early federal cases held. "Certainly those who listen do not perform, and therefore do not infringe." Jerome H. Remick & Co. v. General Electric Co., supra, at 829. "One who manually or by human agency merely actuates electrical instrumentalities, whereby inaudible elements that are omnipresent in the air are made audible to persons who are within hearing, does not `perform'
Such was the state of the law when this Court in 1931 decided Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191. In that case the Court was called upon to answer the following question certified by the Court of Appeals for the Eighth Circuit: "Do the acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set and loud speakers installed in his hotel and under his control and for the entertainment of his guests, the hearing of a copyrighted musical composition, which has been broadcast from a radio transmitting station, constitute a performance of such composition within the meaning of 17 USC Sec. 1 (e)?" The Court answered the certified question in the affirmative. In stating the facts of the case, however, the Court's opinion made clear that the broadcaster of the musical composition was not licensed to perform it, and at least twice in the course of its opinion the Court indicated that the answer to the certified question might have been different if the broadcast itself had been authorized by the copyright holder.
We may assume for present purposes that the Jewel-LaSalle decision retains authoritative force in a factual situation like that in which it arose.
The language of the Court's opinion in the Fortnightly case could hardly be more explicitly dispositive of the question now before us:
The Fortnightly and Teleprompter cases, to be sure, involved television, not radio, and the copyrighted materials there in issue were literary and dramatic works, not musical compositions. But, as the Court of Appeals correctly observed: "[I]f Fortnightly, with its elaborate CATV plant and Teleprompter with its even more sophisticated and extended technological and programming facilities were not `performing,' then logic dictates that no `performance' resulted when the [respondent]
To hold in this case that the respondent Aiken "performed" the petitioners' copyrighted works would thus require us to overrule two very recent decisions of this Court. But such a holding would more than offend the principles of stare decisis; it would result in a regime of copyright law that would be both wholly unenforceable and highly inequitable.
The practical unenforceability of a ruling that all of those in Aiken's position are copyright infringers is self-evident. One has only to consider the countless business establishments in this country with radio or television sets on their premises—bars, beauty shops, cafeterias, car washes, dentists' offices, and drive-ins—to realize the total futility of any evenhanded effort on the part of copyright holders to license even a substantial percentage of them.
And a ruling that a radio listener "performs" every broadcast that he receives would be highly inequitable for two distinct reasons. First, a person in Aiken's position would have no sure way of protecting himself from liability for copyright infringement except by keeping his radio set turned off. For even if he secured a license from ASCAP, he would have no way of either foreseeing or controlling the broadcast of compositions whose copyright was held by someone else.
For the reasons stated in this opinion, the judgment of the Court of Appeals is affirmed.
It is so ordered.
MR. JUSTICE BLACKMUN, concurring in the result.
My discomfort, now decisionally outdated to be sure, with the Court's opinion and judgment is threefold:
1. My first discomfort is factual. Respondent Aiken hardly was an innocent "listener," as the Court seems to characterize him throughout its opinion and particularly ante, at 162. In one sense, of course, he was a listener, for as he operated his small food shop and served his customers, he heard the broadcasts himself. Perhaps his work was made more enjoyable by the soothing and entertaining effects of the music. With this aspect I would have no difficulty.
But respondent Aiken installed four loudspeakers in his small shop. This, obviously, was not done for his personal use and contentment so that he might hear the broadcast, in any corner he might be, above the noise of commercial transactions. It was done for the entertainment and edification of his customers. It was part of what Mr. Aiken offered his trade, and it added, in his estimation, to the atmosphere and attraction of his establishment.
2. My second discomfort is precedential. Forty-four years ago, in a unanimous opinion written by Mr. Justice Brandeis, this Court held that a hotel proprietor's use of a radio receiving set and loudspeakers for the entertainment of hotel guests constituted a performance within the meaning of § 1 of the Copyright Act, 17 U. S. C. § 1. Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931). For more than 35 years the rule in Jewell-LaSalle was a benchmark in copyright law and was the foundation of a significant portion of the rather elaborate licensing agreements that evolved with the developing media technology. Seven years ago the Court, by a 5-1 vote, and with three Justices not participating, held that a community antenna television (CATV) station that transmitted copyrighted works to home subscribers was not performing the works, within the meaning of § 1 of the Copyright Act. Fortnightly Corp. v. United Artists, 392 U.S. 390 (1968). The divided Court only briefly noted the relevance of Jewell-LaSalle and announced that that decision "must be understood as limited to its own facts." Id., at 396-397, n. 18. I have already indicated my disagreement with the reasoning of Fortnightly and my conviction that it, rather than Jewell-LaSalle, is the case that should be limited to its facts. Teleprompter Corp. v. CBS, 415 U.S. 394, 415 (1974) (dissenting opinion.) I was there concerned about the Court's simplistic view of television's complications, a view perhaps encouraged by the obvious inadequacies of an ancient copyright Act for today's technology. A majority of the Court, however, felt otherwise and extended the simplistic analysis rejected in Jewell-LaSalle, but embraced in Fortnightly, to even more complex arrangements in the CATV industry. Teleprompter Corp. v. CBS, supra.
Resolution of these difficult problems and the fashioning of a more modern statute are to be expected from the Congress. In any event, for now, the Court seems content to continue with its simplistic approach and to accompany it with a pragmatic reliance on the "practical unenforceability," ante, at 162, of the copyright law against persons such as George Aiken.
3. My third discomfort is tactical. I cannot understand why the Court is so reluctant to do directly what it obviously is doing indirectly, namely, to overrule Jewell-LaSalle. Of course, in my view, that decision was correct at the time it was decided, and I would regard it as good law today under the identical statute and with identical broadcasting. But, as I have noted, the Court
Although I dissented in Teleprompter, that case and Fortnightly, before it, have been decided. With the Court insisting on adhering to the rationale of those cases, the result reached by the Court of Appeals and by this Court is compelled. Accepting the precedent of those cases, I concur in the result.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE DOUGLAS joins, dissenting.
In Fortnightly Corp. v. United Artists, 392 U.S. 390, 402 (1968), Mr. Justice Fortas observed that cases such as this call "not for the judgment of Solomon but for the dexterity of Houdini." There can be no really satisfactory solution to the problem presented here, until Congress acts in response to longstanding proposals. My primary purpose in writing is not merely to express
Yet, the issue presented can only be resolved appropriately by the Congress; perhaps it will find the result which the Court reaches today a practical and equitable resolution, or perhaps it will find this "functional analysis"
The result reached by the Court is not compelled by the language of the statute; it is contrary to the applicable case law and, even assuming the correctness and relevance of the CATV cases, Fortnightly, supra, and Teleprompter, supra, it is not analytically dictated by those cases. In such a situation, I suggest, "the fact that the Copyright Act was written in a different day, for different factual situations, should lead us to tread cautiously here. Our major object . . . should be to do as little damage as possible to traditional copyright principles and to business relationships, until the Congress legislates and relieves the embarrassment which we and the interested parties face." Fortnightly, supra, at 404 (Fortas, J., dissenting).
As the Court's opinion notes, ante, at 160, in Buck v.
See also Herbert v. Shanley Co., 242 U.S. 591 (1917).
In short, as MR. JUSTICE DOUGLAS observed in the Teleprompter case: "The Court can read the result it achieves today only by `legislating' important features of the Copyright Act out of existence." 415 U. S., at 421. In my view, we should bear in mind that "[o]ur ax, being a rule of law, must cut straight, sharp and deep; and perhaps this is a situation that calls for the compromise of theory and for the architectural improvisation which only legislation can accomplish." Fortnightly, supra, at 408 (Fortas, J., dissenting).
ASCAP's license agreement with the Pittsburgh broadcasting station contained, as is customary, the following provision:
"Nothing herein contained shall be construed as authorizing LICENSEE [WKJF-FM] to grant to others any right to reproduce or perform publicly for profit by any means, method or process whatsoever, any of the musical compositions licensed hereunder or as authorizing any receiver of any radio broadcast to perform publicly or reproduce the same for profit, by any means, method or process whatsoever."
"Any person entitled thereto, upon complying with the provisions of this title, shall have the exclusive right:
"(a) To print, reprint, publish, copy, and vend the copyrighted work;
"(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a nondramatic work; to convert it into a novel or other nondramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art;
"(c) To deliver, authorize the delivery of, read, or present the copyrighted work in public for profit if it be a lecture, sermon, address or similar production, or other nondramatic literary work; to make or procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, delivered, presented, produced, or reproduced; and to play or perform it in public for profit, and to exhibit, represent, produce, or reproduce it in any manner or by any method whatsoever. The damages for the infringement by broadcast of any work referred to in this subsection shall not exceed the sum of $100 where the infringing broadcaster shows that he was not aware that he was infringing and that such infringement could not have been reasonably foreseen; and
"(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce or reproduce it in any manner or by any method whatsoever; and
"(e) To perform the copyrighted work publicly for profit if it be a musical composition; and for the purpose of public performance for profit, and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced . . . ."
"[W]e must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded."
"[O]ur inquiry cannot be limited to ordinary meaning and legislative history, for this is a statute that was drafted long before the development of the electronic phenomena with which we deal here. In 1909 radio itself was in its infancy, and television had not been invented. We must read the statutory language of 60 years ago in the light of drastic technological change." Id., at 395-396 (footnotes omitted).
"A rule which is very hard for laymen to apply so as to keep clear of litigation was established by the La Salle Hotel case. The hotel was heavily liable if it rebroadcast unlicensed music, but how could it protect itself? Must it maintain a monitor always on the job to sit with a list before him pages long showing what pieces are licensed and turn off the master set the instant an unlicensed piece comes from the broadcasting station? The dilemma thus created by the Copyright Act was mitigated for a time by the machinery of ASCAP, which was a device entirely outside the statute. The hotel could obtain a blanket license from ASCAP and thus be pretty sure of safety about all the music which came through its master set. . . . [But if] any composer outside of ASCAP has his music broadcast, what is the hotel to do? Besides getting an ASCAP license, must the hotel bargain separately with every independent composer on the chance that his music may come through to the hotel patrons?
"Such divergences from the ideal . . . are likely to be corrected. . . ." Reflections on the Law of Copyright: I, 45 Col. L. Rev. 503, 528-529.