U.S. Supreme Court Twentieth Century Music Corp. v.
Aiken, 422
U.S. 151 (1975) Twentieth Century Music Corp. v.
Aiken No. 74-452 Argued April 21, 1975 Decided June 17, 1975 422
U.S. 151 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD
CIRCUIT Syllabus Petitioners' copyrighted songs were received on the radio in
respondent's food shop from a local broadcasting station, which was
licensed by the American Society of Composers, Authors and
Publishers to perform the songs, but respondent had no such
license. Petitioners then sued respondent for copyright
infringement. The District Court granted awards, but the Court of
Appeals reversed. Held: Respondent did not infringe upon petitioners'
exclusive right, under the Copyright Act, "[t]o perform the
copyrighted work publicly for profit," since the radio reception
did not constitute a "performance" of the copyrighted songs. Fortnightly Corp. v. United Artists, 392 U.
S. 390 ; Teleprompter Corp. v. CBS, 415 U.
S. 394 . To hold that respondent "performed" the
copyrighted works would obviously result in a wholly unenforceable
regime of copyright law, and would also be highly inequitable,
since (short of keeping his radio turned off) one in respondent's
position would be unable to protect himself from infringement
liability. Such a ruling, moreover, would authorize the sale of an
untold number of licenses for what is basically a single rendition
of a copyrighted work, thus conflicting with the balanced purpose
of the Copyright Act of assuring the composer an adequate return
for the value of his composition while, at the same time,
protecting the public from oppressive monopolies. Pp. 422 U. S.
154 -16.

															500 F.2d 127, affirmed.

															STEWART, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined.
BLACKMUN, J., filed an opinion concurring in the result, post, p. 422 U. S. 164 .
BURGER, C.J., filed a dissenting opinion, in which DOUGLAS, J.,
joined, post, p. 422 U. S.
167 . Page 422 U. S. 152 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. I 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 Page 422 U. S. 153 local station while several customers were in Aiken's
establishment. Petitioner Twentieth Century Music Corp. owns the
copyright on one of these songs, "The More I See You"; petitioner
Mary Bourne the copyright on the other, "Me and My Shadow."
Petitioners are members of the American Society of Composers,
Authors and Publishers (ASCAP), an association that licenses the
performing rights of its members to their copyrighted works. The
station that broadcast the petitioners' songs was licensed by ASCAP
to broadcast them. [ Footnote 1 ]
Aiken, however, did not hold a license from ASCAP.

															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. Page 422 U. S. 154 CBS, 415 U. S. 394 . We
granted certiorari. 419 U.S. 1067. II The Copyright Act of 1909, 35 Stat. 1075, as amended, 17 U.S.C.
§ 1 et seq., [ Footnote
2 ] gives to a copyright holder a monopoly limited to specified
"exclusive" rights in his copyrighted works. [ Footnote 3 ] As the Court explained in Fortnightly Corp. v. United Artists, supra: "The Copyright Act does not give a copyright Page 422 U. S. 155 holder control over all uses of his copyrighted work. Instead, §
1 of the Act enumerates several 'rights' that are made 'exclusive'
to the holder of the copyright. If a person, without authorization
from the copyright holder, puts a copyrighted work to a use within
the scope of one of these 'exclusive rights,' he infringes the
copyright. If he puts the work to a use not enumerated in § 1, he
does not infringe."

															392 U.S. at 392 U. S.
393 -395.

															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. [ Footnote 4 ] Page 422 U. S. 156 The limited scope of the copyright holder's statutory monopoly,
like the limited copyright duration required by the Constitution,
[ Footnote 5 ] reflects a balance
of competing claims upon the public interest: creative work is to
be encouraged and rewarded, but private motivation must ultimately
serve the cause of promoting broad public availability of
literature, music, and the other arts. [ Footnote 6 ] The immediate effect of our copyright law is
to secure a fair return for an "author's" creative labor. But the
ultimate aim is, by this incentive, to stimulate artistic
creativity for the general public good. "The sole interest of the
United States and the primary object in conferring the monopoly,"
this Court has said, "lie in the general benefits derived by the
public from the labors of authors." Fox Film Corp. v.
Doyal, 286 U. S. 123 , 286 U. S. 127 . See Kendall v.
Winsor , 21 How. 322, 62 U. S.
327 -328; Grant v.
Raymond , 6 Pet. 218, 31 U. S.
241 -242. When technological change has rendered its
literal terms ambiguous, the Copyright Act must be construed in
light of this basic purpose. [ Footnote 7 ] Page 422 U. S. 157 The precise statutory issue in the present case is whether Aiken
infringed upon the petitioners' exclusive right, under the
Copyright Act of 1909, 17 U.S.C. § 1(e), "[t]o perform the
copyrighted work publicly for profit." [ Footnote 8 ] We may assume that the radio reception of the
musical compositions in Aiken's restaurant occurred "publicly for
profit." See Herbert v. Shanley Co., 242 U.
S. 591 . The dispositive question, therefore, is whether
this radio reception constituted a "performance" of the copyrighted
works.

															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 Page 422 U. S. 158 to audible form. [ Footnote
9 ] Although Congress did not revise the statutory language,
copyright law was quick to adapt to prevent the exploitation of
protected works through the new electronic technology. In short, it
was soon established in the federal courts that the broadcast of a
copyrighted musical composition by a commercial radio station was a
public performance of that composition for profit -- and thus an
infringement of the copyright if not licensed. In one of the
earliest cases so holding, the Court of Appeals for the Sixth
Circuit said:

															"While the fact that the radio was not developed at the time the
Copyright Act . . . was enacted may raise some question as to
whether it properly comes within the purview of the statute, it is
not, by that fact alone, excluded from the statute. In other words,
the statute may be applied to new situations not anticipated by
Congress, if, fairly construed, such situations come within its
intent and meaning. . . . While statutes should not be stretched to
apply to new situations not fairly within their scope, they should
not be so narrowly construed as to permit their evasion because of
changing habits due to new inventions and discoveries."

															" * * * *" "A performance, in our judgment, is no less public because the
listeners are unable to communicate with one another, or are not
assembled within an inclosure, or gathered together in some open
stadium or park or other public place. Nor can a performance, in
our judgment, be deemed private because each listener may enjoy it
alone in the privacy of Page 422 U. S. 159 his home. Radio broadcasting is intended to, and, in fact does,
reach a very much larger number of the public at the moment of the
rendition than any other medium of performance. The artist is
consciously addressing a great, though unseen and widely scattered,
audience, and is therefore participating in a public
performance." Jerome H. Remick & Co. v. American Automobile
Accessories Co., 5 F.2d 411, 411-412. See also M. Witmark
& Sons v. L. Bamberger & Co., 291 F. 776 (NJ); Jerome N. 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., [1925]
Vict.L.R. 350; Messager v. British Broadcasting Co., Ltd., [1927] 2 K.B. 543, rev'd on other grounds, [1928] 1 K.B.
660, aff'd, [ 1929] 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' Page 422 U. S. 160 within the meaning of the Copyright Law." Buck v. Debaum, 40 F.2d
734 , 735 (SD Cal.1929).

															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 U.S.C. 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. [ Footnote 10 ]

															We may assume for present purposes that the Jewell-LaSalle decision retains authoritative force in a
factual situation like that in which it arose. [ Footnote 11 ] But, as the Court of Appeals
in this case perceived, this Court has in two Page 422 U. S. 161 recent decisions explicitly disavowed the view that the
reception of an electronic broadcast can constitute a performance
when the broadcaster himself is licensed to perform the copyrighted
material that he broadcasts. Fortnightly Corp. v. United
Artists, 392 U. S. 390 ; Teleprompter Corp. v. CBS, 415 U.
S. 394 .

															The language of the Court's opinion in the Fortnightly case could hardly be more explicitly dispositive of the question
now before us:

															"The television broadcaster, in one sense, does less than the
exhibitor of a motion picture or stage play; he supplies his
audience not with visible images, but only with electronic signals.
The viewer conversely does more than a member of a theater
audience; he provides the equipment to convert electronic signals
into audible sound and visible images. Despite these deviations
from the conventional situation contemplated by the framers of the
Copyright Act, broadcasters have been judicially treated as
exhibitors, and viewers as members of a theater audience.
Broadcasters perform. Viewers do not perform. Thus, while both
broadcaster and viewer play crucial roles in the total television
process, a line is drawn between them. One is treated as active
performer; the other, as passive beneficiary."

															392 U.S. at 392 U. S.
398 -399 (footnotes omitted). ,

															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] Page 422 U. S. 162 merely activated his restaurant radio."

															500 F.2d at 137.

															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. [ Footnote
12 ]

															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. [ Footnote
13 ] Secondly, to hold that Page 422 U. S. 163 all in Aiken's position "performed" these musical compositions
would be to authorize the sale of an untold number of licenses for
what is basically a single public rendition of a copyrighted work.
The exaction of such multiple tribute would go far beyond what is
required for the economic protection of copyright owners, [ Footnote 14 ] and would be wholly at
odds with the balanced congressional purpose behind 17 U.S.C. §
1(e):

															"The main object to be desired in expanding copyright protection
accorded to music has been to give to the composer an adequate
return for the value of Page 422 U. S. 164 his composition, and it has been a serious and a difficult task
to combine the protection of the composer with the protection of
the public, and to so frame an act that it would accomplish the
double purpose of securing to the composer an adequate return for
all use made of his composition and at the same time prevent the
formation of oppressive monopolies, which might be founded upon the
very rights granted to the composer for the purpose of protecting
his interests."

															H.R.Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).

															For the reasons stated in this opinion, the judgment of the
Court of Appeals is affirmed. It is so ordered. [ Footnote 1 ]

															For a discussion of ASCAP, see K-91, Inc. v. Gershwin
Publishing Corp., 372 F.2d 1 (CA9).

															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."

															[ Footnote 2 ]

															The Constitution gives Congress the power:

															"To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries."

															U.S.Const., Art. I, § 8, cl. 8. See, e.g., Burrow-Giles
Lithographic Co. v. Sarony, 111 U. S. 53 , 111 U. S. 58 ; Trade-Mark Cases, 100 U. S. 82 , 100 U. S.
94 .

															[ Footnote 3 ]

															Title 17 U.S.C. § 1 provides in part:

															"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. . . ."

															[ Footnote 4 ] Cf. Wall v. Taylor, 11 Q.B.D. 102, 106-107 (1883)
(Brett, M. R.):

															"Singing for one's own gratification without intending thereby
to represent anything, or to amuse any one else, would not, I
think, be either a representation or performance, according to the
ordinary meaning of those terms, nor would the fact of some other
person being in the room at the time of such singing make it so. .
. ."

															[ Footnote 5 ] See 1 M. Nimmer, Copyright § 5 (1974).

															[ Footnote 6 ]

															Lord Mansfield's statement of the problem almost 200 years ago
in Sayre v. Moore, quoted in a footnote to Cary v.
Longman, 1 East *358, 362 n.(b), 102 Eng.Rep. 138, 140 n. (b)
(1801), bears repeating:

															"[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."

															[ Footnote 7 ]

															In Fortnightly Corp. v. United Artists, 392 U.
S. 390 , the Court stated:

															"[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 392 U. S.
395 -396 (footnotes omitted).

															[ Footnote 8 ] See n 3, supra. [ Footnote 9 ]

															Station KDKA, established in Pittsburgh in 1920, is said to have
been the first commercial radio broadcasting station in the world. See Buck v. Jewell-LaSalle Realty Co., 283 U.
S. 191 , 283 U. S. 196 n. 2.

															[ Footnote 10 ]

															"[W]e have no occasion to determine under what circumstances a
broadcaster will be held to be a performer, or the effect upon
others of his paying a license fee. "

															283 U.S. at 283 U. S. 198 (emphasis added). See also id. at 283 U. S. 199 n. 5.

															[ Footnote 11 ]

															The decision in Jewell-LaSalle might be supported by a
concept akin to that of contributory infringement, even though
there was no relationship between the broadcaster and the hotel
company and, therefore, technically no question of actual
contributory infringement in that case. Id. at 283 U. S. 197 n. 4.

															[ Footnote 12 ]

															The Court of Appeals observed that ASCAP now has license
agreements with some 5,150 business establishments in the whole
country, 500 F.2d 127, 129, noting that these include "firms which
employ on premises sources for music such as tape recorders and
live entertainment." Id. at 129 n. 4. As a matter of
so-called "policy" or "practice," we are told, ASCAP has not even
tried to exact licensing agreements from commercial establishments
whose radios have only a single speaker.

															[ Footnote 13 ]

															This inequity, in the context of the decision in Buck v.
Jewell-LaSalle Realty Co., 283 U. S. 191 , was
pointed out by Professor Zechariah Chafee, Jr., 30 years ago:

															"A rule which is very hard for laymen to apply so as to keep
clear of litigation was established by the LaSalle 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 patron?"

															"Such divergences from the ideal . . . are likely to be
corrected. . . ."

															Reflections on the Law of Copyright: I, 45 Col.L.Rev. 503,
528-529.

															[ Footnote 14 ]

															The petitioners have not demonstrated that they cannot receive
from a broadcaster adequate royalties based upon the total size of
the broadcaster's audience. On the contrary, the respondent points
out that, generally, copyright holders can and do receive royalties
in proportion to advertising revenues of licensed broadcasters, and
a broadcaster's advertising revenues reflect the total number of
its listeners, including those who listen to the broadcasts in
public business establishments.

															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 422 U. S. 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. Page 422 U. S. 165 Viewed in this light, respondent is something more than a mere
listener, and is not so simply to be categorized.

															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 392 U. S.
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 U. S. 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. Page 422 U. S. 166 I had hoped, secondarily, that the reasoning of Fortnightly and Teleprompter would be limited to
CATV. At least in that context the two decisions had the arguably
desirable effect of protecting an infant industry from a premature
death. Today, however, the Court extends Fortnightly and Teleprompter into radio broadcasting, effectively
overrules Jewell-LaSalle, and thereby abrogates more than
40 years of established business practices. I would limit the
application of Teleprompter and Fortnightly to
the peculiar industry that spawned them. Parenthetically, it is of
interest to note that this is precisely the result that would be
achieved by virtually all versions of proposed revisions of the
Copyright Act. See, e.g., § 101 of S. 1361, 93d Cong., 2d
Sess., which sought to amend 17 U.S.C. § 110(5). See also §§ 48(5) and (6) of the British Copyright Act of 1956, 4 & 5
Eliz. 2, c. 74, which distinguishes between the use of a radio in a
public place and "the causing of a work or other subject matter to
be transmitted to subscribers to a diffusion service."

															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 422 U. S. 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 Page 422 U. S. 167 in Fortnightly limited Jewell-LaSalle "to its
own facts," and in Teleprompter ignored its existence
completely by refusing even to cite it. This means, it seems to me,
that the Court did not want to overrule it, but nevertheless did
not agree with it, and felt, hopefully, that perhaps it would not
bother us anymore anyway. Today the Court does much the same thing
again by extracting and discovering great significance in the fact
that the broadcaster in Jewell-LaSalle was not licensed to
perform the composition. I cannot join the Court's intimation, ante at 422 U. S. 160 -- surely stretched to the breaking point -- that Mr. Justice
Brandeis and the unanimous Court for which he spoke would have
reached a contrary conclusion in Jewell-LaSalle in 1931
had that broadcaster been licensed. The Court dances around Jewell-LaSalle, as indeed it must, for it is potent
opposing precedent for the present case, and stands stalwart
against respondent Aiken's position. I think we should be realistic
and forthright and, if Jewell-LaSalle is in the way,
overrule it.

															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 , 392 U. S. 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 Page 422 U. S. 168 disagreement with the Court, but to underscore what has
repeatedly been stated by others as to the need for legislative
action. Radio today is certainly a more commonplace and universally
understood technological innovation than CATV, for example, yet we
are, basically, in essentially the same awkward situation as in the
past when confronted with these problems. We must attempt to apply
a statute designed for another era to a situation in which Congress
has never affirmatively manifested its view concerning the
competing policy considerations involved.

															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" [ Footnote 2/1 ] too simplistic an approach, cf.
Teleprompter Corp. v. CBS, 415 U. S. 394 , 415 U. S. 415 (1974) (BLACKMUN, J., dissenting), and opt for another
solution.

															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 392 U. S. 404 (Fortas, J., dissenting).

															As the Court's opinion notes, ante at 422 U. S. 160 ,
in Buck v. Page 422 U. S. 169 Jewell-LaSalle Realty Co., 283 U.
S. 191 (1931), answering a precisely phrased certified
question, the Court construed the Copyright Act in a manner which
squarely conflicts with what is held today. Congress, despite many
opportunities, has never legislatively overruled Buck,
supra. It was not overruled in Fortnightly, but
treated "as limited to its own facts." 392 U.S. at 392 U. S.
396 -397, n. 18. Even assuming the correctness of this
dubious process of limitation, see Fortnightly, supra at 392 U. S. 405 (Fortas, J., dissenting); Teleprompter, supra at 415 U. S. 415 (BLACKMUN, J., dissenting), Buck is squarely relevant
here, since the license at issue expressly negated any right on the
part of the broadcaster to further license performances by those
who commercially receive and distribute broadcast music. Moreover,
even accepting, arguendo, the restrictive reading given to Buck by the Court today, and assuming the correctness of Fortnightly and Teleprompter in the CATV field,
it is not at all clear that the analysis of these latter cases
supports the result here. [ Footnote
2/2 ] Respondent was more than a "passive beneficiary." Fortnightly, supra at 392 U. S. 399 .
He took the transmission and used that transmission for commercial
entertainment in his own profit enterprise, through a multi-speaker
audio system specifically deigned for his business purposes.
[ Footnote 2/3 ] In short, this case
does not call for what the Page 422 U. S. 170 Court describes as "a ruling that a radio listener performs'
every broadcast that he receives . . . ," ante at 422 U. S. 162 .
Here, respondent received the transmission and then put it to an
independent commercial use. His conduct seems to me controlled by Buck's unequivocal holding that: "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."

															283 U.S. at 283 U. S.
198 -199. 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 415 U. S. 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 392 U. S. 408 (Fortas, J., dissenting).

															[ Footnote 2/1 ]

															"Broadcasters perform. Viewers do not perform." Fortnightly
Corp. v. United Artists, 392 U. S. 390 , 392 U. S. 398 (1968) (footnotes omitted).

															[ Footnote 2/2 ]

															Recent congressional proposals have treated the present problem
distinctly from CATV questions. See, e.g., S. 1361, 93d
Cong., 2d Sess. (1974). See also British Copyright Act of
1956, §§ 48(5), (6), 4 & 5 Eliz. 2, c. 74.

															[ Footnote 2/3 ]

															Indeed, in its consideration of S. 1361, the Senate Committee on
the Judiciary undertook to distinguish use of "ordinary radios"
from situations "where broadcasts are transmitted to substantial
audiences by means of loudspeakers covering a wide area." S.Rep.
No. 93-983, p. 130 (1974). The value of this distinction, without
drawing a line on the number of outlets that would be exempt, is at
best dubious; this version leaves the obvious gap in the statute to
be filled in by the courts.

Summary: In Twentieth Century Music Corp. v. Aiken, the US Supreme Court held that receiving a radio broadcast of copyrighted music in a public place does not violate the copyright owner's exclusive performance rights. The Court reasoned that the radio reception itself did not constitute a "performance," and imposing liability on the respondent would be inequitable and unenforceable. This decision aimed to balance the interests of composers and the public, preventing oppressive monopolies while ensuring adequate returns for creators.