No. 341 | S.D. Ohio | Apr 23, 1924
The complainant is the owner of the copyrighted song entitled “Dreamy Melody.” On or about October 22, 1923, between the hours of 9 and 10 p. m., the defendant is alleged to have caused the rendition of this composition, “Dreamy Melody,” by means of singing and an orchestra, to be broadcast from its station in the city of Cincinnati. This act is alleged to have been a public performance for profit of the copyrighted musical composition, and the present action is to enjoin similar broadcasting of complainant’s composition and to recover damages and profits under the Copyright Act (Comp. St. § 9517 et seq.).
*630 “In the last analysis this ease turns upon the construction of a statute, for it is perfectly well settled that the protection given to copyrights in this country is wholly statutory.” ».
By Act March 4, 1909, c. 320, § 1,35 Stat. 1075 (U. S. Comp. Stat. § 9517), any person entitled thereto, upon compliance with the provisions of the Copyright Act, is given the exclusive right “to perform the copyrighted work publicly for profit if it be a musical composition' and for the purpose of public performance for profit.” By the same act, as amended August 24, 1912 (37 Stat. 489, U. S. Comp. Stat. 1918, § 9546), an infringer is made liable to aq injunction restraining such infringement, and to pay to the copyright proprietor such damages as the copyright proprietor may have suffered, due to infringement, as well a‘s all the profits which the infringer shall have made from -such infringement, or, we assume, in the absence of proof of profits or damages, arbitrary fixed damages, but not less than $250. This minimum is claimed in the instant case.
_ The unwillingness of the courts to extend the language of the act' beyond1 its express provisions is further exemplified by the case of Thompson v. Hubbard, 131 U.S. 123" court="SCOTUS" date_filed="1889-05-13" href="https://app.midpage.ai/document/thompson-v-hubbard-92530?utm_source=webapp" opinion_id="92530">131 U. S. 123, 151, 9 Sup. Ct. 710, 720, 33 L. Ed. 76" court="SCOTUS" date_filed="1889-05-13" href="https://app.midpage.ai/document/thompson-v-hubbard-92530?utm_source=webapp" opinion_id="92530">33 L. Ed. 76, in which case it is held that the failure to print notice of copyright prevents any right of action for infringement from coming into existence, even as against him who originally secured such copyright. Here the court say:
“This right of action, as well as the copyright itself, is wholly statutory, and the means of securing any right of action in Hubbard are only those prescribed by Congress.”
The question, therefore, resolves itself into a determination whether the broadcasting of a rendition of complainant’s musical composition was a performance of it publicly for profit in the common, ordinary, and reasonable acceptation of this phrase. We are familiar with the holding of the United States District Court for the District of New Jersey in the case of M. Witmark & Sons v. L. Bamberger & Co., 291 F. 776" court="D.N.J." date_filed="1923-08-11" href="https://app.midpage.ai/document/m-witmark--sons-v-l-bamberger--co-8831761?utm_source=webapp" opinion_id="8831761">291 Fed. 776, in whidi the court concluded that the rendition of a song for broadcasting purposes was a public performance of the musical composition, and that such performance was unquestionably for profit within the decision of Herbert v. Shanley Co., 242 U.S. 591" court="SCOTUS" date_filed="1917-01-10" href="https://app.midpage.ai/document/herbert-v-shanley-co-98862?utm_source=webapp" opinion_id="98862">242 U. S. 591, 37 Sup. Ct. 232, 61 L. Ed. 511" court="SCOTUS" date_filed="1917-01-10" href="https://app.midpage.ai/document/herbert-v-shanley-co-98862?utm_source=webapp" opinion_id="98862">61 L. Ed. 511. While, considered seriatim, this opinion might be said to arrive at a logical conclusion, viz. that the singing was a performance, that it was public in the sense that those could listen who cared to -and were equipped with receiving instruments, and that it was for profit because of its advertising value, and therefore every element of a public performance for profit had been disclosed, we have been unable to bring ourself to the conclusion that such broadcasting was within what Congress had in mind when using the language “perform publicly for profit.”
Funk & Wagnalls’ Standard Dictionary (1911) defines a performance :
“(2) Specifically a representation on tbe stage or before an audience or spectators; an exhibition of feats; any entertainment at a place of amusement; as, two performances daily.”
y/hile not found in other standard dictionaries, it is just this idea which we think Congress had in mind in passing the enactment in its present form. In order to constitute a public performance in the sense in which we think Congress intended the words, it is absolutely essential that there be an assemblage of persons—an audience congregated for the purpose of hearing that which transpires at the place of amusement. This is in no wise contrary to the case of Herbert v.‘Shanley Co., supra, for there was there such audience congregated
Nor is our opinion in conflict with the case of Kalem Co. v. Harper Bros., 222 U.S. 55" court="SCOTUS" date_filed="1911-11-13" href="https://app.midpage.ai/document/kalem-co-v-harper-brothers-97466?utm_source=webapp" opinion_id="97466">222 U. S. 55, 32 Sup. Ct. 20, 56 L. Ed. 92" court="SCOTUS" date_filed="1911-11-13" href="https://app.midpage.ai/document/kalem-co-v-harper-brothers-97466?utm_source=webapp" opinion_id="97466">56 L. Ed. 92, Ann. Cas. 1913A, 1285, which simply holds that a cppyrighted work may be infringed by dramatization through the use of moving pictures. We simply feel that the rendition of a copyrighted piece of music in the studio of a broadcasting station, where the public are not admitted and cannot come, but where the sound waves are converted into radio frequency waves and thus transmitted over thousands of miles of space, to be at last reconverted into sound waves in the homes of the owners of receiving sets, is no more a public performance in the studio, within the intent of Congress, than the perforated music roll, which enables the reproduction of copyrighted music by one without musical education, is a copy of such music. A private performance for profit is not within the act, nor is a public performance not for profit. All contemplate an audience which may hear the rendition itself through the transmission of sound waves, and not merely a reproduction of the sound by means of mechanical device' and electro-magnetic waves in ether.
“The purpose of the amendment evidently was to put musical compositions on the footing of dramatic compositions, so as to prohibit their public performance.” White-Smith Music CO. v. Apollo Co., supra.
And the close association in the act of provisions relating to the drama and to public performance of musical compositions would seem to demonstrate conclusively that Congress had in mind a place of such performance to which the public was admitted for the entertainment there of the senses, a congregating together for this purpose, and the payment, in one way or another, of compensation for the entertainment provided. This would seem to be the whole extent of the exclusive privilege or property right granted, and the effect of the act should not be extended beyond such clear and unambiguous import of the words used.
The motion to dismiss must therefore, in our opinion, be granted.