# Appellants Brief — Buck v. Jewell-LaSalle Realty Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0002%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 1931 - **Citation:** 283 U.S. 191 ## Text a. Nos, 138 and 139." . - Gaxe Buox,. as. “Président of the SAgiert* can Society. of Composers; ‘Authors ond Publishers, and. De Sviva, Brown _ Se Hparste, Ino., a ‘corporation, ° : - Jurisdiction | \ Statement of the Case Question Certified. ae : Summary of Argument. Ai Argument INDEX ° | UE ele Opinions of the Court Below. I. The question involved in fans cases does a si “hag a eae Ss affect owners of private radio receiving sets used Se in their own homes:., Il. The courts have uniformly given to the > words “public perfo for profit’? and ‘‘per- form publicly for profit’? in Section 1 (e), of the proprietor as each new condition has arisen _____ affect the construction: to be givert to the words publicly for profit’’, in See,.1 (e) of the act______. ‘Iv. In the light of the. before stated liberal an progressive interpretation given by the. ‘aunet - copyright statutes, the LaSalle Company, gave performances in. its hotel within the at 4 Copyright Act a broad and liberal interpretation, - and have applied them so as to protect t the copyright ‘“public performance for profit” and. “perform | III.. The fact that radio broadcasting and recep- — _ tion as now practiced was unknown at’the time of _ the passage of the Copyright Act in 1909 does ‘not he ) the use of its.radio receiving set and ad iieetets.. ae _ of Sec. 1 (e) the Copyright Act, just the same as i - if it had em oyed an orchestra to render the copy- See - vighted compositions therein. \A gontrary view: —— _. would fail/to recognize the substance and réality of == > the matter, as well as the purpose of the act. Conse- -. . quently, the question certified should be angwered ; an the: affirmative. sabia . eat ee AY : Conclusion SEEN eS . cae es a | Appendix. —____ a 8B : TABLE OF Cases. 3 : "Berlin v. Daigle, 31 F&t. (24) 832 (0. 0. A, 5th Cire.) 9° Buck v. De“Baum, 40 Fed. (2d) 734. -19, 20 ; -° Buck v. Heretis, 24 Fed. (2d) 876 (D. C.E.D.8.C.)_. 9 ' Buek v. Lester, 24 Fed. (2d) 877 (D. C. E. D. 8. C9 Chappell & Co., Ltd. v. Associated Radio Co., 31, 1925, 50 Victoria Law Reports, 350 (Australia) 10, 12, 13, 4 21, 34 John Church Co. v. Hilliard Hotel Co., 221 Fed. 229, Re- . versed, 242 U. 8. 591 __- 9 - Copinger—The Law of Copyright, p. 154 _ 18 cod ete. v. Shapiro, mise & Co. (C. C. A., eae “= [th Cir., Dec. 11th, 1929) we ‘Edison v. Embin, 129 Fed. 240 (0. 0. A. Srd Gir.) 16 Fada Radio, Ltd. v. Cariadian General Electric Co., ‘Ltd. Canada Law Reports Gee); p. 239 (Supreme Court of Canada) — = 221,30 Funky Blaney, 148 Fed. 642, 644 it: 1S ~ Gambart v. Hald, 14 C. B. (N-8.) 308 ______ 15, 16 Hatms v, Colien, 279 Fed..276 eve ° Harper Bros. v. Donohue, 144 Fed. 491, 496 “18 Herbert v. Shaver On, $20 Fed. 340 (Reversed, 242 © : U. 8, 591)-___. 9, 25. 3 Irving Berlin, Inc. v. Edelweiss Cafe and Sittateaeall mae Company, U. 8. Ding. Court, District of Colo (un- : - Teported) wr Mm. Kalem v. Harper Brothe 222 U. 8. 55._._"_.13, 16, 16 8 * Date'v | 40 Fed. ( ) 501 (C. C. A. 5th Cir.) (ce ee ne | 10° PAGE e Marconi Wireless v. De Forest Radio, 236 Fed. 942, 944 7 (DO, 8. DIG 2) 21 ee v. The British Broaithating Co., Ltd., 187 ¢ " L. 'T. Rep, 810.(1927); 2 K. B. 543; same case.on Seoaal Law Rep: (1998) 1K. B. 660 (Court of Ap- peals); 140 L. T. Rep. 227 (1929) (House. of | Lords) =. a ee ‘Monahan v. Taylor, 2 Times Law Reports; 685 (QB 7 ‘D:) 21: Pastime Amusement Co. v.-M. ‘Witmark & Sons. 2h 2 2S (2d) 1020 (aff’g. 298 Fed. 470) ee '. People v. ‘Congress Radio, Inc., 133 Mise. (N. Y.) bien ee (aff’d. 234 N. Y: Supp. 860) 21 ST Performing Right Society, Ltd. v. Tommie 34 Times Law Reports, 351 __— 21 Radio Corp. v. Splitdorf Bleetrical 00, 14 Fed. (24) pee _ 648, 644 (D. C. N. J.) 21 Radio Corp. v. Twentieth Century Radio Corp. Fed. a4 (2d) 290, 291 (C. C. A., 2nd Cir.) re . Remick v. American Automobile Accessories Co, 5° + Fed. (2d) 411 (C. C. A., 6th Cir.) Cert. denied; 269°’ | 2 US. 5567 ‘9,14, 15 Remick v. General Blectrie Co., ri Fed. (2d) 160 (D. ©. pyr ie S. D-N. Y.) — 10: - Remick v. General Electric Co., 16 Fed. (24) 829 (D. C. Sean S. D. N. Y.) \ 19, 18-19, 28-29 ae Strattons Independence v. . Howbert, 231 U. S. 399, 422 19° - Trove v--Boyd, 97 Fed. 5867 * ‘Westinghouse E. & M..v. De Forest Radio, a1 Fed, (24) 918, 919 (C, C. A., 3rd Cir.) = * Witmark & Sons v. Bamberger, 291 Fed. 776 ©. Cc, Mi 36 5 10 - M. Witmark & Sons v. Calloway, 22 Fed. (24) 412 (D. = (C. B.D. Tenn.) ¢ IN’ THE Gigreme C Ceca of the United States - October Term, 1930. Nos. — and 139. Gene Buck, as President of the ‘ates Society of. Composers, Authors and Pub- lishers, and Dz Sytva, Brown & Henvzr- son, Inc., a corporation, © ace sky : Appellants, vs. vane > Jawert-LaSatie Reaury Company, a cor- poration, Appellee. a . ON CERTIFICATE FROM THE UNITED STATES crrcurr COURT OF APPEALS FOR THE EIGHTH CIRCUIT. “as FOR APPELLANTS. 7 Opinions of the Court Below. - As these cases are here on certificate from the Cireuit : Court of Appeals for the Highth Circuit, there is no. opinion of that Court. The opinion ‘of the District Court is Tre- | 7 parted in 53 Fed. ie 366. ‘Jurisdiction. ~ The Circuit. Court of Appeals for the Eighth Circuit = has certified to this Court a question or proposition c? law pursuant to Section 239 of the Judicial Code as amended ue Z the Act of February 13, -1925.* — 3 "WU. S. Coté, Title 28, Sec. 346..- “ FS . Z . Ome : o* : . 4 ; 2 ° ’ *4 . ‘ ¥ : . é . . . . - 2 2 : 3 . . e ; e . - % * . ~ - : ~ 5 = . cs ® - ee z : e \ ie . ‘ : . * . : . ; . ‘ 3 . . 7 ; R = : - ‘ . . : : ‘ “ 2 . ‘ . ¢ . . ° 3 é : . e- . % ‘ . € . : ° : ? . y . “. e . aa ae : - . S ° - . oe . . oo an : Sisieiiea. Court of the United States ” = October Term; 1930. Nos. 138 and 139. : - Genz Bucs, as President of the American Society of Composers, Authors and Pub-. lishers, and Dz Syiva, Brown & Henper- "SON, Inc., a — ; Appellants, . vs. & Jéwata-LaSante Reaury Company, a cor- : saieg me ss er mea ee cee ls . 8 ON CERTIFICATE FROM THE UNITED STATES CIRCUIT’ .COURT OF. APPEALS FOR, THE EIGHTH CIROUIT. e of. BRIEF F OR: APPELLANTS. Opinions of the Court Below. / As these ¢ cases are here on certificate from the Cirenit: Court of Appeals for the Eighth Circuit, there i is no opinion of that Court. . The opinion of the District Court is re- ported in 32 Fed. a. : ‘The Circuit Court of ‘Appesia for the Hight ¢ Cirenit Se - has certified to this Court a question or proposition of law. pursuant to Section 239 of the Judicial Code as amended by S - the Act of February 13, 1925." a : we ed - 90. S. Code, Title 28, Sec, 346 a eee bine cheidatiomsiehconetass 4 : ‘Statement of the Sonn’ One of these actions (No. 138) was brought by appellants - against Wilson Duncan, operating a radio broadcasting station in Kansas City, Missouri, and Jewell-LaSalle Realty - ~ Company, the appellee i in the Court below, conducting the LaSalle Hotel at the same place.’ The other action (No. 139) was brought against the Jewell-LaSalle ‘Company alone. Both suits were instituted in the United States Dis- trict Court for the Western District of Missouri, and are based alleged infringements of copyrighted musical com- - positions. The ) copyrights are owned by one of the plain-. tiffs, and the other plaintiff has the exclusive non-dramatic . performing rights thereunder.? An injunction and dam- - ages are sought.’ The cases were submitted to the District - Court on an agreed state of facts, which may be briefly summarized as’ follows: eee y defendant Duncan owned -and operated a radio ae broadcasting station in Kansas.City. This station was . admittedly operated for purposes of profit; Duncan receiv-" ing rent and income from —— engaging the facilities «of the station.‘ Defendant, J awell-LaSalle Realty. aie owned and operated the LaSalle Hotel likewise..for. profit. For the convenience and entertainment of its guests and the public generally, and to promote its business through making the hotel an attractivé and desirable ‘place for the public to _ patronize and to attract trade. and custom thereto, the _ LaSalle Company gave and caused to be given in its hotel - daily performances or renditions of musical compositions. Sais condiote te he Court below will erenatter be referred fo as the Company”. - plaintiffs ad the apple as the defendant or “the LaSalle Cert. pp, 2-3. Cert. p. 2. ; ee Cet p42 |, : A Ne ~ For such purpose, among other instruments and sv ee installed and maintained in the hotel a large and powerful. master radio receiving set, which was at all tim s under the | - direct control of, and operated by, the LaSalle e Company, a and ‘‘which received and converted radio waves transmitted : from radio broadcasting stations into sound’’.S The receiv- © ing set was equipped with wires leading therefrom to parts of the hotel, including the public rooms, parlor and — lobby; as well as about 200 private rooms. Loud speake - were attachéd to wires leading from the radio recéivin _ set, so that any broadcasted musical composition picked * . by the receiver was simultaneously heard. sina the| as hotel. 6 On certain dates, without the constant or ROVE of plain- tiff, Duncan broadcast from his radio station, the copy- ~ righted musical compositions in question. By means of its beforementioned radio receiving set, ‘loud speakers, and other devices owned and controlled by it, the LaSalle Com- _ pany picked up: the radio waves so broadcast by Duncan, converted them into sound in the ‘manner hereinafter set . forth, and thus ‘enabled and caused its guests in the LaSalle Hotel to hear said musical production so performed .. | - and rendered’? by’ Duncan.’ No pre-arrangement existed — . between Duncan and the LaSalle Company with respect to | _ what music’should be broadcast by the former or picked.up .. by the latter. Duncan operated his radio broadcasting sta- . tion without any connection with the LaSalle Company, selected his own programs, ‘and. broadcast them for the. benefit of himself and whoever chose ‘to tune i in and receive them® « . ee ~* .Prior to the ieee ‘suet snatiatel there had es sent sa . . ‘to the — Company, -by Pegistaned mak a letter advis- g it iainielhy of the terms of the Gonyright Aet and that unless a license was obtained from plaintiff, American So- oe of Composers, Authors and Publishers, it should - — avoid the rendition or performance under any cir-. . tances, in its hotel, ‘of any: musical composition. copy- righted by any member of said Society. The name of — _ De Sylva, Brown & Henderson, Ing., the other plaintiff, was included in the list of members of the J cepard which was enclosed with such notice.® It was, and i is, the. plaintiff’s contention that wish de- fendant had separately given a public: performance for _ profit of the copyrighted musical compositions, within the- . meaning of Section 1 (e) of the Copyright Act,!° to be here- - inafter quoted, and had consequently a the plain- ? tiffs’ copyright: pe; In the first suit, a decree pro: sitbesti was entered , against defendant Duncan, for failure to answer, and later | ~ a final decree was awarded granting an injunction and dam- .- ff + ‘ages against him. The District Court, however, denied - _ _ any relief against the LaSalle,Company and dismissed the bill as to it, holding that what it had done did not constitute wa “‘performance’’ within the meaning of. the Copyright ', ~. Act, and hence that the company had not eed the copyright.2 — “a NO - In the second suit, the bill ‘was likewise Gentine’ as to the eount which alleged an infringement based on facts similar to those just recited. There was, however, another ~ eount in that suit in which the infringement: asserted was ~ : the rendition of a copyrighted ——e comitwaition: by an. | au. CFS Bale, jhiteec tte. neh lets court 18 No. 1 orchestra in the hotel. The latter count was sustained, and an injunction and damages were awarded to the plaintiff.“ From the decrees dismissing the bill, plaintiff appealed | _ to the Circuit Court of Appeals for the Eighth Circuit. ‘The ____.. LaSalle. Company appealed from so much of the decree in _ the second suit as awarded « damages against it. “The. Cirenit Court of Appeals, af fter argument; certified to this Court the | tions whic arise aly in the second case. As ese latter. a - fendant’s brief on its. —— 18 Question Certified. _. “Do the acts of a hotel sitio! in ce ae 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 enter- — tainment of his guests, the hearing of a copyrighted . - musical composition which has been broadcast from a radio transmitting station, constitute a perform- ance of such composition within the — of 7 USC Sec. 1 (e) 777° Cm Oe } The Circuit Court of Appeals evidently conelaered that ~ if the. question were answered in the affirmative, that the performances were both public and for profit, and, in that event, that LaSalle Company had infringed. Consequently, ¢ _-. whether or not they were “public” and “for profit?’ will \ +: potbe Gioounped:t in see brief. eee | een se profit”, in Section 1 (e) of the Copyright Act a broad and the public, it has been consistently held that such a person SUMMARY OF ARGUMENT. . The qiestion involved in these cases does not allent owners of private radio receiving sets used in their own homes. E if they could be said to be giving a per- formance within the méaning of the Copyright Act, when > they. invite their friends to hear a musical composition which is being broadéast, they would not be guilty of infringe- - ment, because an unlicensed performance of a copyrighted. ‘musical composition is not an infringement unless it is both public and for profit. 2. The Courts - -have salieamae given rd the words. “public performance, for profit” and “perform publicly for ' liberal interpretation, and have applied them so as to pro- — tect the copyright proprietor as each new condition has arisen. ‘They have brushed aside all of the sophistries ; which have been indulged in by those who have wished, for purposes of profit, to avail themselves of 'the copyrighted musical genius of others without paying therefor. If the rendition of the copyrighted composition has been for the profit of the person who makes it available to any part of infringes ‘the Copyright Act, irrespective of whether the _ profit is indirect and irrespective of the means employed = - to per the musical composition to the ears of the public. | : 3.. The fact that radio broadcasting and reception’ as . mow practised was unknown at the time of the passage of _ the Copyright Act in 1909 does not affect the construction to be given to the words “public’ performance for profit” and “perform publicly for profit”, in Sec. 1 (e) of the Act. This proposition has received the express approval of the _ Cireuit: Court of Appeals for the 6th’ Circuit, and is in eo poco mele bes ecmmarne ee receiving set and loud speakers, gave perf 7 _ 4 In the ‘Hebt of tbe: ested deuked. liberal Mos oe 0 gressive interpretation given by the courts to copyright state utes, ‘the LaSalle Company, through the use « of ite’ hotel wii! in the meaning of Sec. I (e) of th _ just the same as if it had employed an 6% the copyrighted compositions therein. A contrary view_ would fail to recognize the substance and ‘reality of the . : matter, as well as the. p! of the Act. Reason and «the weight of such auth as there are support this es proposition. The decision ey the District Court is upon incorrect reasoning and is out of harmony with os: liberal construction which the courts have given to the - Copyright Act. . Consequently, the snes certified sd a anes Oe i 3 “ae ow _ . ARGUMENT. ee en the question certified calls for.a \counieustion of Sec. : 1 (e) of the Copyright Act, we shall preface the discussion - of the precise questio on with a brief statement of the limita- _ ee "tions of that Section, and the character of the interpretation — | ve, which has heretofore been given to it by the courts, and ; alro with a consideration of what effect, if any, the fact — a. hee broadcasting as now ‘practised was unknown at the time. . . of the passage of the Copyright Act in 1909, has ais the : conateneHon of the Act ; oa | Me ._ ‘when he invites his friends to hear a musical composition - - performance by a private radio ‘receiving set in a home 8 IL THE QUESTION INVOLVED IN THESE CASES. DOES NOT” AFFECT OWNERS OF PRIVATE RADIO RECEIVING SETS USED IN THEIR OWN HOMES. @ : - At the outset, “we desire to make it clear that the ¢ owner of a private tadio receiving set, used in his own home, could not, under any circumstances, be liable for the infringe- ment .of copyrighted music.broadcast from a radio trans-_ mitting station, even if he could be said to be giving a performance within the meaning of the Copyright Act, which is being broadcast. This is so, because under the . express terms of the Copyright Act, unless the performance . of a copyrighted musical ‘composition is both public and for profit, there is no infringement of the copyright. The would be neither public nor for profit. | - The Copyright Act,” provides: “Section .1. ‘That any person entitled thereto, - _ upon complying with the provisions of: this title, . shall have the exclusive ager | “(e) To sarform the copyrighted work | licly for profit. if it bea musical. ay eget Ae for the-—.. _ purpose ; of public performance sie pro et ae It is upon the violation of the exclusive right of the copy- right proprietor to publicly perform the copyrighted musi-- cal composition for profit that these actions are based. ~~. PAY BST a / pre ee Same & ak gs £3 - IL. ‘THE COURTS HAVE UNIFORMLY. GIVEN TO THE WORDS “PUBLIC PERFORMANCE FOR PROFIT” AND “PERFORM PUBLICLY FOR PROFIT” IN SECTION 1 (E) OF THE COPY-. — ‘RIGHT ACT A BROAD AND LIBERAL INTERPRETATION, AND HAVE APPLIED THEM SO AS TO PROTECT THE COPY- RIGHT PROPRIETOR AS EACH NEW CONDITION HAS ARISEN. A eS In. Herbert v. Shanley Co., (229 Fed. 340) anit John Church Co. v. Hilliard Hotel Co.; (221 Fed. 229), the Circuit Court of Appeals for the Second Circuit held that the ren- dition of a copyrighted musical. composition by a hotel orchestra and by professional singers accompanied by an - orchestra, respectively, where no separate charge was made © for the music, did not constitute a public performance for — profit within the meaning of the Act. These decisions, how- ever, were reversed by this Court (242-U. 8. san Justice ; HoLMEs saying : ; *. “*Tf the rights under the ona are «intel only by a performance where money is taken at the — door, they are very imperféctly protected. * oe _« 48 enough to say that there $ is no need to construe the - statute 80 narrowly.’” BaP Std — The effort of moving piiinne theatre proprietors to es- cape the charge of infringement when parts of copyrighted musical compositions were played by orchestras, organs or other musical instruments during the showing of moving pictures, and where no separate charge was.made for the music, was met by adverse decisions in the United States District Court for the Eastern District of Pennsylvania ; (Harms v. Cohen, 279 Fed. 276) and in the Circuit Court — — Appeals for the Fifth Circuit (Pastime Amusement Co. v. M. Witmark & Sons, 2 Fed. (2d) 1020, affirming 298 Fed. 470), as well as in a number ~f other courts whose anaigione ae os have not been reported. ~~. 10 Nor have the courts made any distinction between cases where the performance is by a musician and those where it is by a phonograph-record or perforated music roll upon a player piano. M. Witmark & Sons v. Calloway, 22 Fed. (2d) 412 (D. C. E. D. Tenn.) ; Buck v. Lester, 24 Fed. (2d) — 877 (D. C. E. D. 8. C.); Buck v. Hergtis, 24 Fed. (2d) 876 (D. C. E. D. S. C.); Berlin v. Daigle, 31 Fed, (2d)° 832 (C. C. A. 5th Cir:); Lutz v. Buck, 40 Fed. (2d) 501 (C. C. A. 5th Cir.) ; certiorari denied October 20, 1930.- «: ' the new situation.”” . - This questi was also considered and ‘answered in the same way by the Supreme Court of Store in Chappel @ - Co.; Ltd., v. Associated Radio Co.; supra,” and by Justice ‘MoUanom in Messager. v. British —— Senden: ae supra. sgt In Kalem v. Hlaiper, ora the methed of performing : _ dramatic incidents of a story by motion pictures was un- known at the time of the passage of the Copyright Act, - under which that suit was brought. Notwithstanding that, ’ - this Court held that motion pictures infringed the copyright : ~ owner’s right to dramatize the story. , In Gambart v. Hald, cited by J udge Mack, Chief J antiee Erte said that he éould see no reason why the words of the statute should not be construed “‘according to their plain ~ and ordinary meaning, and be held to apply to any mode of - copying known at that time, and $0 such other modes of Ex 1950 Victoria yas . 350 (1925). mt agglacatl Isat) 2K. B. 543 . . 21222 U.S ae 16 multiplying copies as the ingenuity of man ‘may from time’. to time discover.’’ fee In Edison v. Lubin, 122 Fed. 240, the Circuit Court « af A; Appeals for the 3rd Circuit said, at page 242: 3 “To say. that, the continuous method “e which this negative was secured was unknown when the . act was passed, and therefore a photograph of it was _ _ not covered by the act, is to beg the question. Such - ‘ -eonstruction is at variance with the object of the act, . which was passed to further the constitutional grant : of power ‘to promote the progress | of science and « . useful arts.2. When Congress, in recognition of the ~-— photographic art, saw-fit_i in 1865 to amend the act. - - of 1831 (13 Stat. 540), and extend copyright protec- tion to a shoteraph or negative; it is not to be pre- - sumed it thought such art could not. progress, and — that no protection: was to be afforded such progress. o It must have recognized there would be change aid - -advanee in making photographs, just as there has been in making books, printing sage and other | = subjects of copyright protection. : “It can ‘searcely be said that naking the cuadition of a ~ copyrighted musical composition n publicly available, for profit, through the instrumentality of radio and its various mechanisms, is not as clearly within the scope and’ spirit of - the Copyright Act as it would be to make it available by. . admitting the public to a room, where the. copyrighted musi- eal composition i is being rendered by an orchestra or other . - performer. In either case, ‘the exclusive right which the _ Act confers upon the composer to publicly perform the -. — composition for profit is invaded, only the means employed °° are different. The Act is not. concerned. with the means, - s . but, as this. Court held i in alem v. Bare, ‘supra, with ie result. ; | a] IN THE ‘LIGHT OF THE aes STATED LIBERAL, AND ©. TO COPYRIGHT STATUTES, THE DASA‘ O} | | THROUGH THE-USE OF ITS RADIO RECEIVING SET AND LOUD SPEAKERS, GAVE PERFORMANCES “WITHIN, THE MEANING OF SEC. 1 (e). OF THE C ACT, JUST THE SAME AS IF IT HAD: ara YED ’ WELL AS THE PURPOSE OF THE ACT. CONSEQU | THE QUESTION CERTIFIED SHOULD BE ANSWEE RED _ AFFIRMATIVE. . ; Bie teces. a In discussing this proposition, we shall first refer to) ich *\ authorities as have dealt with the questions raised by , then to the considerations which we think must lead to the, conélusion that the: proposition. is sound, and finally to what we think are-the fallacies: in the reasoning of Judge a | in the District, Court, as we presume this eure will consider , . his Opinion. . cate Pe mF There’ ‘are nO cases, 8 so far as we are aware, except 3 the case at bar where the precise question before this Court _ has been passed upon. However, the proposition for which * we. contend has’ received judicial sanction as well as the approval of a leading writer on the law of copyright. On e the other hand, it. seems to ‘be opposed to the dicta of a District Judge in the Southern District of ‘California, i in a _ ase decided after ie decision was rendered i in the case at bar.” ae, . In M essager ve The British Benodanstingd Lo. “Ltd, supra,” Mr. J ustice McCarpm, in approaching the soluiion: _ of the question as to whether broadoasting constitnbed an infringement of copyright, said: : “22 Buck y,.De Baum, 40 Fed. (2d) 734. pee I, 28 137 L. T. Rep. 810 (1927); 2K. B. 543. ; ee & ae “ale is, I think, Scosesiahly clear. that @ person: who gives toa public audience a performance made audible and eff ective to them by means of a recewing va ‘imstrument in the place where that public is assem- . bled together may be liable for Taifeingweoott of of copy-/ right. Sea Mr. Copinger, one of the best known textbook writers on copyrights, in his work on “The Law of Copyright’’ (which was published in 1927, before Justice MoCanpm’s decision was handed down), after quoting the definition of perform- ance as contained in the. English Copyright Act, said (p. 154) : a Proliant nde Mane ‘“‘Tt seems fairly clear: thérefore that a person ‘who renders a performance audible. by means of a@ ~ receiving instrument performs the work, and if such ° .. performance is ‘in public’ it will be an ‘infringment of copyright. | Although J ndge TacunE, in Remick v. Conoral 1 Electric . Company, pra,* was dealing with a radio broadcaster, his reaso fully supports the proposition for which we con- | tend‘in the case at bar. He held that one ‘‘who, by means . of the microphone ‘picks up’ another’s unauthorized per-| formance of a copyrighted musical composition and trans- - mits it by radio from a broadcasting. station maintained and 3 i operated ‘to stimulate the sale of radio products’’, infringes : the copyright. He said that the only distinction between . that case ‘and Remick v. American Automobile Accessories es Co., supra, was that the defendant i in the former ‘did not. =. ~ * participate in the rerdition of the musical production except " 5 by affording to others the opportunity to hear it.’’ Inthe . case/before Judge THacuzr, the musical composition was performed, in the first instance, by an ‘orchestra i in the ball- : #16 Fed. (2) 829 poo ofa hotel. ‘It t waa" picked np”? i a — and fF _ broadcast through defendant’s station. © tas, difficult to perceive any real distinction, 80 far ae infringement of a copyright «i is concerned, between a radio. ‘*- broadcaster who ‘‘ nicks up’’ and broadcasts from his trans-— mitting station an unauthorized performance of a copy-.. : righted musical. composition, and a hotel proprietor who: ‘‘picks up’’ by his receiving set such a performance which has been broadcast, and, through his loud speaker, rebroad- | casts it in his hotel and thus makes | it available to his ’ spatrons, there ‘assembled. ie ‘.. Judge MoCormick | in the ‘Soutien District of Cali. | : fornia, held, in Buck v. DeBaum, 40 Fed. (2d) 734, that a cafe proprietor who. “picked up’’ on a ra set ‘in his cafe and made available to the ‘patrons thereof, a _ copyrighted musical composition which had been broadcast — ‘from a commercial station, which station had. been licensed $0: broadcast. the composition, did not infringe the copy- . _ right. His decision was ‘based‘on the theory that the copy- ~ right proprietor, by licensing. the broadcasting station, ie + “impliedly sanctioned and consented to any ‘pick-uy « out a _- of the air that was possible i in radio reception.’’ In the case . at bar, the broadcaster was. not licensed, and, consequently, we presume that this Court will not be willing to pass upon. the effect,.if any, that a license granted to a broadcaster _ “may have on the right of one situated as is thedefendant.* _ Therefore, we shall not attempt.to afgue the" question in | this brief. | It will be sufficient, we think, to merely point out. _ that there is a vast difference between implying a license to _, “pick out of the air’’ a musical composition which a broad- - @ caster has been, licensed to broadcast and implying a fur- .. . | ; cenise to perform for profit. what has thus — ; ¢ v. Howbert, 231. U. S. 399, 42, ~ __ picked out”. The Court in that case declined to recognize this distinction. In the course oN udge MoCormick s eS | \. Opinion, he expressed the View that, \ - “One who manually or by has n agency merely actuates electséeal instrumentalitie whereby inau- ‘.- dible elements that are.omnipresenf\in the air are — made audible to persons who are within hearing, does not ‘perform’ within the meaning of the copyright law. 99 \ ; . AN | - This was of course dictum, as the decision was rested ¢ on ’ an implied license. The reasons given by him for this Scipalinalon will be dis- cussed hereafter when -we. deal with the opinion of\ Judge Ors, as they are some of ‘the reasons given by J udge Orts, and doubtless were influenced by his decision. Judge Mo- Cormick stated in his opinion that Judge Orts’ decision: was an authority in J udge McCormick’ s suit on ‘‘the mean-. - ing to be given to the word ‘perform’ in the Copyfight Act.’ An: appeal has been - taken from Judge MoCorMick’s decision, but the argument has been held in abeyance await- ing the final disposition of the case at bar. ~ 2. It is clear from the decisions cited” under ‘Point II that any rendition of a musical composition, whether by a ‘musician or mechanical meen. constitutes a performance ' thereof. In approaching a sation. of the question as to whether the appellee gave, or caused to be | given, a performance ‘i in the Hotel LaSalle, it is important not to lose sight of the manner in which radio operates, or at least how sound at "one point is: made audible through radio at a distant point. Considering the important part that radio plays in our everyday life and the extent to which it has been described ~ 4 21 by the Courts,* we presume that the Court will take judicial _ notice of one or-both of these matters. In People v. Con- - .gress Radio, Inc., 133 Mise. \(N. Y.) (ane. 226 A. De; aa N. Y. Supp. 860) it was said: “A radio receiver is an instrument of wall: gen- eral and well-known use that I believe the court ts justified in taking judicial notice of the fact that-a radio receiver.is a stationary instrument for repro- ~ | ducing sound transmitted on an electrical wave from a radio broadcasting: ‘station and intercepted by the radio receiver or, a radio receiver and antenna, re- transmitting the sound through ear phones or — through the m jum of a loud speaker, a device used in connection with the radio for the purpose of mak-. ing the sound le throughout.a larger field than that achieved by the use of the ear phones. The referred to as inductances, capacities and resistances, and devices for their control, so wired and arranged ‘to receive the electrical rege ot) er. for ee - . ation.” 3 “Without regard to close technical a Pecks patio may be. described as follows: , . One speaking into the microphone varies or r meaieiaiae an electric current in accordance with the vibrations (pro- - 25 See Marconi Wireless v. DeForest Radio 236 Fed. 942, 944, (D.C. S. D._N. Y.); Radio Corp. v. Splitdorf Electrical Co., 14. Fed. (2d) 643, 644, | OS Nd: ; Radio Corp. v. Twentieth Century Radio Corp., 19 Fed. (2d .), an excellent Catan: © EGM.. — eForest Radio, 21 Fed. (2d) on 919 bed i A.; 3rd Cir.)$ Fada Radio, Ltd. v. Conadion General Blectric C Lid, Canada Law Reports, (192%), 239 (Supreme Court of Canada) ; ‘Chappell & Co, Lid rts, (1928), Co., 50 V; 1925) (Australia). Extratts from Ss EE geschel sok tee ono anon 28 See descriptions in the cases cited under footnote 23; also “The Prin- _ ciples Underlying Radio Communication en ae Se an by the Bureau of Standards for the Signal Corps of U. S. ‘ } duced by the or of the catenins The variation of _ this electric current correspondingly varies an oscillating current or electro-magnetic wave that is continuously gen- ~ ‘ erated by and radiated from the transmitting station. The current transmitted is known as ‘‘oscillating current’’, which oscillates at a frequency of twenty thousand to one ~ million cycles or more per second. These oscillating cur- - _ rents radiated from the transmitting station are referred to as radio frequency currents or radio waves. They are =e picked up at the receiving station by. the antenna wire or. aerial and flow directly into the ground. In doing so, how- ever, they ‘pass through a coil or some similar instrumen- tality associated with the receiving set (which is indepen-— dently. supplied with an electric current) and if the receiving set is tuned or adjusted to the frequency ‘of oscillations of - the waves being transmitted, the passage of the radio waves through the aerial or antenna wire to ground sets. up or induces currents in the radio receiving set. These currents, even though modulated or altered in. accordance with ’ speech, cannot be utilized in their then form to directly re- produce the original sound. A detector in the receiving set, : usually. a tube, is utilized to’‘change the characteristics of - the modulated radio frequency currents set up in the receiv- _ § apparatus into a current of low. enough ‘frequency to . actuate a reproducer, such as a telephone receiver or loud © ' speaker, and cause its diaphragm to vibrate in the same way that the diaphragm of the microphone ‘vibrated,.and - generate sound waves audible to the ear. The currents — "after they have been changed in characteristic by the de- ' tector and are usable for operation on audible apparatus are said to be audio frequency currents. These audio fre- = quency currents are amplified (by other tubes in the receiv-.. ing set) so as to give more volume and strength before they - finally actuate the audible apparatus. It will be seen, there- "tiie, that no sound i is carried op the ae radio waves, | ’ but the--receiving set and loud speaker’ reproduce or re» - create the original sound waves. The cyele is: (1): sound . "waves: (at audio frequency) varying an electric. current. (at = audio frequency), which currents in turn (2). alter, modify or modulate high frequency currents. (radio. frequency) so. that radio waves (at radio frequency) (3).radiate from the: ~ aerial of the transmitting station, (4) passthrough theaerial. - of the receiving station, (5) induce or set up the modulated: . high frequency currents. (at radio frequency) in the re- | ceiving set, where their character ‘is: (6). changed’ by the detector: to low frequency currents (at. audio frequency): which in turn (7). cause thé diaphragm of a sound: produc: ing device, such as a loud speaker, to vibrate (at audio’. - _ frequency) and (8) set-up sound waves in 1 avcordanve: with ae its vibrations. ' It must be continually ay in ae —— that the guests and patrons of the hotel did not hear the original - rendition of the musical composition, and, indeed, that it: @ was not carried through space, but that: they heard a repro- duction thereof ; that this reproduction. was brought about by the acts of the ‘appellee i in (1) installing, (2). supplying “6 electric current to, and (3) operating the radio receiving _ set and loud speakers; and that these things were done by ‘the appellee for the entertainment of its guests and to. _ attract patrons to the hotel.. It must also be: remembered — 7 that it is not the act of. reception that constitutes the in- fringemerit—for that is not a performance—but the further _ and separate act of ré-broadcasting the original perform __ ance through the loud speakers so as to make the aii . formance available-to the guests. of the hétel. / | It is difficult to see any difference in substance (and‘sub- =S stance is what the Courts: have dealt with in applying the « _ _ Copyright Act) between ‘a case where a hotel engages an orchestra to furnish music ‘for: the entertainment of its = guests and a case, where, through the means of a radio re- | ceiving set and loud speakers, it furnishes the same music, _ from the same orchestra, for the same purposes. In the - one case the orchestra would k be in the hotel; in the other — case in a broadcasting studio, but the music is, in each‘ case, made avatichle to the patrons of the hotel by the act ofthe hotel proprietor and thkough instrumentalities under his control, agai There seems also to be no logical r reason why, if the re- sitinetiie of a musical composition on a phonograph on _ perforated player piano roll, in a: dance hall, restaurant or moving picture theatre, constitutes a public performance (as the cases before cited hold that it does), the act of re- eae producing or making audible an original performance | through the use of a radio receiving set and loud speakers - does not likewise constitute a performance. In the case of the phonograph, there has been an initial performance in- audible to those dutside’ of the studio where it took place, but which has been impressed ‘upon a bakelite disc. _ Through the instrumentality of the needle or stylus, and the ~ sound box or loud speaker it is madé audible to others and - . rformance of. the musical corposition. ‘In the same way in radio, there has been an initial perform- _ ance which is inaudible to those outside of the place where - the initial performance took place, but which is made au- ‘dible through the instrumentality of a receiving set and loud speakers. The only difference seat . and the receiving set is in the means employ +. the reproduction. But, manifestly, that feature is of no -. gndment. * The important consideration in each case is that ‘by an independent act of his own, one makes available to _ others for his profit a performance of the copyrighted work effectuate. Se My of ‘another juillet paying the — proprictor therefor. te Again, there. seems to be no siilaieniée a in iain be- tween the broadcaster who makes available, for the enter- - tainment of others and for his own profit, the rendition ofa — ‘copyrighted musical composition, ‘and one who does the ~ same thing for the same purpose but simply uses a different means of- making the performance thus available. - The broadcaster transmits through his transmitting apparatus; : the appellee here transmits through its receiving aprareee 3 and loud speakers. 2 — it. performance ofa vcaksicaided: opera were bircadenel, ' gould it reasonably be said that the proprietor of a theater, ‘ to which admission was charged, who installed a receiving set and loud speaker therein, and re-broadcast to ‘his: pa- trons the performance which was being given in the opera house, would not be giving @ public performance for profit - within the meaning of Sec. 1 (e) of the Copyright Act? A , negative answer to that question would seem to’ disregard the realities of the situation and recognize a fineness of dis- _ tinetion which has never characterized the construction of that Section by the Courts. Moreover, considering the : facility with which speech and music can be broadcast and received, a negative answer would result. in copyrighted — musical compositions, to use the language of Mr. J ustice Houtmes in Herbert v. Shanley. Company, supra," -being — ‘very imperfectly protected’’. Thetheatre proprietor inthe ~ supposed case is no different from the hotel proprietor in the case at bar. Again, unless plaintiff’s position is upheld, an infringing broadcaster could transmit sound pictures by . television and radio to. the many thousand theatres in the . United States, for the showing 0 * which each theatre could "$242 U. Ss. 591. 2 | instrumentality set up by himself, electrically energized by -- able to others. The broadcaster ‘‘has not created the . . through the instrumentalities set up and controlled by the . 6. : hides an saciidainn fee, and the copyright owner would be _ without remedy, save. perhaps to pursue a broadcaster who might-be financially irresponsible, and who, in en did . not = the performance in the theatre. 3. (a)- It would seem that the underlying thought of the | learned judge of the District Court atid of the defendant in the Court below is that one in the position of appellee: ‘merely listens and does not perform. because ‘the has not created the music which he has heard.’’ It is true, of course, that one’ who listens does not .perform, but, this. analogy does not carry through to a case where one, by an himself and controlled by him, makes a performance avail- music’’; that has been done by the musician or musicians, but it has been made available to the thousands of listeners ~ _- broadcaster. Neither has the person who inserts the record in the phonograph ‘‘created the music’’, but by the phono- graph and his control of it, he has made it audible to all within the range of the instrument. | (b) In answering the contention of the e plaintiffs. that . there was no difference between the phonograph dnd what ~~ the appellee did in this case the ® judge of the District | Court ~ - said (R.,p. 21): 7 = “The: record on 1 bakelite (the dise of the $ phiono- : graph) isa separate and distinct. thing from the orig- - inal performance in the studio where the record was made. Playing that record is performing anew the - musical. composition imprinted upon it. The waves . ~ thrown out upon the ether are not a record of the: ( original performance. They are tle original per-' — '- formance. The reception‘is not a roprolecyn but a nal a Selectivity i is soe by ‘ tuning’.’ ‘Taube since Jn so ‘adjusting the circuits of the receiving set that. their oscilla- - tions are at the same rate as those: of the high Pregnancy -wave which constitutes the desired signal. - It has long been known that if a receiving set is tuned -to the same frequency as the desired wave, that wave has~ more effect upon the receiving set than any other. When _ thus tuned the receiving set becomes -highly responsive to . the desired wave and at the same time less responsive, or more opaque, to waves of different frequencies. And it is upon the basis of this well known, fact that different in- - -yentors have constructed devices calculated to eliminate undesired signals and to secure and strengthen the desired — signal. The more perfectly the undesired signals are ex- cluded the better the selectivity of the receiving apparatus.” - SS anaes Co., — vs. Associated. Radio Co. of Australia Limited — ‘The object as in the case of the gramophone and the ary telephone with a continuous metallic connection is not.to convey atmospheric disturbances directly as in _ speaking or acoustic tubes and other early contrivances but = _ to reproduce at the place of audition atmospheric disturb- ances similar to those occurring at the place of sonation. | ‘We may take a short statement from a recent book ‘Wire- less’ by P. J. Risdon, F. BR. S. A., at p. 139, he says: ‘It is. customary to speak of wireless transmission of speech and ‘of converting sound waves into ether waves and vice versa - but as a matter of fact we do nothing of the kind. What we _ - do is this: by means of sound waves we cause modulations - .in the flow of an electric current which i impress correspond- ing modulations on the aerial current which.in turn sets up ~ - @ train of ether waves with modulations in them corre-. © ) on to the modulations i in a Me: aciainal» sound waves. e 35 = ae o. ety 3 At the receiving end the: seocess is reversed and sound waves are produced exactly like the original sound aves.’ At p..144 he says that ‘amplifying’ a eurrent or. current . _variations does not mean magnifying the same current but | means that its variations are impressed upon* anoth r. and = more powerful current. ‘ 3 ‘« Atthe receiving end the ‘ process is reversed’ by ki aving | an aerial (or some equivalent) which has or can by simiple - adjustments. be made to have the same fundamente | quency as the transmitting aerial so that it is made syntonic - or ‘tuned’ to the corresponding wave lengths and by having a rectifier to get a unidirectional instead of an alternating ‘ -eurrent.and an apparatus like an ordinary telephone re-:— . - -eeiver for the purpose of bringing about the atmospheric : disturbances’ which: result in audition. In certain: cases there may also be necessary provisions for amplifying in fre-.:. the sense already explained.— The important matter ts that vo in all casés of reproduction of what may be called similar: sounds at a distance the modulations in the original atmos- pheric disturbances are in a sense preserved though | mani- : festing themselves at various stages and in various Inedia in various ways, e. g., in the gramophone at one stage by the variations in the bottom of the grooves cut in the cyl- nder or disc, in the ordinary telephone at one stage by the variations in the strengths of the electric currents passing _ through the metallic conduetor; and in broadcasting in the way just mentioned and also at another stage by the varia- — tions in the singstbacti of the series of eleckep-snignetio. a waves. os --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0002%3A1. Public record. Not legal advice.