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
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 Fed. Rep. 229, as to public performance for profit. 222 Fed. Rep. 344. The decree was affirmed by the Circuit Court of Appeals. 229 Fed. Rep. 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
Decrees reversed.