U.S. Supreme Court Herbert v. Shanley Co., 242
U.S. 591 (1917) Herbert v. Shanley
Company No. 427, 433 Argued January 10,
1917 Decided January 22,
1917 242
U.S. 591 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE SECOND
CIRCUIT Syllabus The performance of a copyrighted musical composition in a
restaurant or hotel without charge for admission to hear it but as
an incident of other entertainment for which the public pays
infringes the exclusive right of the owner of the copyright to
perform the work publicly for profit under the Act of March 4,
1909, c. 320, § 1(e), 35 Stat. 1075.

															221 F. 229, 229 F. 340, reversed.

															The cases are stated in the opinion. Page 242 U. S. 593 MR. JUSTICE HOLMES delivered the opinion of the Court.

															These two cases present the same question: whether the
performance of a copyrighted musical composition in a restaurant or
hotel without charge for admission to hear it infringes the
exclusive right of the owner of the copyright to perform the work
publicly for profit. Act of March 4, 1909, c. 320, § 1(e), 35 Stat.
1075. The last-numbered case was decided before the other, and may
be stated first. The plaintiff owns the copyright of a lyric comedy
in which is a march called "From Maine to Oregon." It took out
a Page 242 U. S. 594 separate copyright for the march and published it separately.
The defendant hotel company caused this march to be performed in
the dining room of the Vanderbilt Hotel for the entertainment of
guests during meal times, in the way now common, by an orchestra
employed and paid by the company. It was held by the circuit court
of appeals, reversing the decision of the district court, that this
was not a performance for profit within the meaning of the act. 221
F. 229.

															The other case is similar so far as the present discussion is
concerned. The plaintiffs were the composers and owners of a comic
opera entitled "Sweethearts," containing a song of the same title
as a leading feature in the performance. There is a copyright for
the opera and also one for the song, which is published and sold
separately. This the Shanley Company caused to be sung by
professional singers, upon a stage in its restaurant on Broadway,
accompanied by an orchestra. The district court, after holding
that, by the separate publication, the plaintiffs' rights were
limited to those conferred by the separate copyright -- a matter
that it will not be necessary to discuss -- followed the decision
in 221 F. 229 as to public performance for profit. 222 F. 344. The
decree was affirmed by the circuit court of appeals. 229 F.
340.

															If the rights under the copyright are infringed only by a
performance where money is taken at the door, they are very
imperfectly protected. Performances not different in kind from
those of the defendants could be given that might compete with and
even destroy the success of the monopoly that the law intends the
plaintiffs to have. It is enough to say that there is no need to
construe the statute so narrowly. The defendants' performances are
not eleemosynary. They are part of a total for which the public
pays, and the fact that the price of the whole is attributed to a
particular item which those present are Page 242 U. S. 595 expected to order is not important. It is true that the music is
not the sole object, but neither is the food, which probably could
be got cheaper elsewhere. The object is a repast in surroundings
that to people having limited powers of conversation, or disliking
the rival noise, give a luxurious pleasure not to be had from
eating a silent meal. If music did not pay, it would be given up.
If it pays, it pays out of the public's pocket. Whether it pays or
not, the purpose of employing it is profit, and that is enough. Decree reversed.

Summary: In *Herbert v. Shanley Co.* (1917), the U.S. Supreme Court ruled that playing copyrighted music in a public setting, such as a restaurant or hotel, without permission from the copyright owner, constitutes copyright infringement. This applies even when there is no direct charge for listening to the music, as long as it is part of a larger offering for which customers pay. The Court reasoned that such performances are intended to attract customers and generate profit, thus infringing on the copyright owner's exclusive right to perform their work publicly for profit. This decision expanded the scope of copyright protection and established important precedents for public performance rights in the context of musical compositions.