Music Trade Review

48
THE
MUSIC
TRADE
REVIEW
AUGUST
18, 1923
, INlfti:WOiUlfO~M~~~ I
CON D UCTED B Y V . D . WALSH
PUBLISHERS WIN VICTORY IN RADIO-COPYRIGHT SUIT
SONGS THAT SELL
Federal D istric t Court H olds W itmark Copyrig h t Violated by Broadcastin g T hro ugh the R a dio
Station of L . Bamberger & Co ., New ark-Indirect Profit H eld to Wa rrant V iolation
A decision of great importance to m usic pub­
li s he r s a nd operators of radio broadcasting sta­
tions was han d ed down by Jud ge Lynch in the
U. S. DIs tri ct Co urt, Ne wark, N.
on Satur­
day of last week in a test case brought against
L. Bamber ger & Co., the department s tore of
Newark, operating a broadca sting station known
as WOR, by M. Witmark & Sons, Ne\\ York,
music publishers, the ac tion being brought ovcr
the us e of th e song "Mother Machree" in a
broadcasting pro gram.
The court found for th e pla llltiff in deciding
that the broadcast in g of copy ri g hted songs
without permis~ion is a breach of copyright, bllt
withheld a restrainin g order agains t the defend­
ants pending a review of th e opi nion. In br in g­
ing the suit ,-\' itmark & Sons had the support
of the American Society of Composers, i\uthors
and Publishers
In view of the fact th at thi s is the firs t deci­
sion of this character handed down by the
courts , 2.n r\ ,hJ.t the opin ion plc" cnL:; 'l. number
of interesting angles on the subject, it is re­
printed herewith in full for the information of
the trade .
r.
"The deJ.cndant conciucts a. g igantic department store
ill the City of Nf"wark, New Jersey, ann. se lls its ware.;
~1. r eta il throughout the State () ( r\ew Jersey, It not in
:tojaccnt States .
Since February, ] 922, it has conouded
:l. radio department wherein r adio equip ment of ~Ii so rt s
It has also es ta b li shed and conducts a licensed
is so ld.
radio hro3Cka"ling station, known as Station "VOR, from
w hi.c h vocal and instrum e nt",l concerts and other enter­
tainment and informati on a r : € hroadcasted on a wave
length 0 f 405 metrrs,
Th l; \) \.1; 1~ lil'i' ow tlS til c musIcal
composition entitled 'l\10the r l\1achree' and, uncler the
Copyrigh t Act of 1909, po ssesses th e exc lu si vc r ig h t to
pe r fon" that cOt1lpos; ~io n publi c ly (or prahl
"The plaintiff, allegin g that the defendant performed,
o r caused to be pe rformed, it s co mpo sition '1\{other 1,\,1 a­
eh r ee' by means of s ill :.: in g from th~ broadcasting station
\\lOR and that this performance by the defendant was
publi c ly for profit, prays that a preliminary illjU!1 f"' if'1l jcc'lc
restra ining the d(' fe nuant ( rom l:U! further pe r fo rmance of
it s copy ri g ht song. The defendant denies that. this broad­
casting of the copy ri ghted 'l\{other l\tlachree' was or i ~
for {rofil, its co ntentio n be in g' t h a t beca use everything
it broadcasts is broadcasted without charge o r cost In
radio listeners, there is no performance Pt,bJic/y for profit
within the meaning o f the Copyrig ht Act.
"It being extremely unlike ly that a n}" facts developed
upo n fina l hearin g- will a ltl: r th e undisputed s ituation
tl O\'\.' presenten and hoth partie s d esirin g a speedy final
rle te rminalion of the iss ue. the cou rt is disposed. at this
encore-encouragers
"home sweet hom~ lullaby"
" little lad o'dreams"
"sweetheart o'mine"
"music of a baby"
"land o'romance"
"caHin' you"
encore-repeaters
"april fool & little pignose"
"three encore songs"
"the lilac tree"
"the newlyweds"
"wishes three"
hinds, hayden & eldredge, inc.
publishers
new york city, no Yo
tim e, to r q; i.'~ t c r it:, cOllc lusiollS as to th e law.
"Th e question simme red down is: \Vh at is meant by
th e words 'publicly for profit'? Fortunatd y, those words
lJa vt.: bt::c u construed l)y the United States Supreme Court
in the case of Herbert v. Shanley Co ., 242 U. S. 591 , a
case fr equen tl y ref e rred to by co unsel on both sides of
this· causC. The facts there we r ~ as follows: The Shanley
Co. conducted a publ ic rc~taurant in New York City
whe rein was locatc:::d a platform o r small stage up on wltich
orchestral sd~ctions \\'cr~ rendered and songs wt::re sung
by paid pe rform e rs [or the entertainment of persons visit­
ing th e r es taurant. No admission fee was charged . The
owner {It ;l co pyrif!"hted song known as 'Sweeth ea rts,'
allegil1g that his property rights were being invaded be­
cau se his sO ll g was being sung by Shanley's performer~.
sought injun ctiv e rr.;lid in the Un ited States Courts for
th e Sout he rn Dist ri ct oi r..; ew York.
This re li ef was
dented, it be iu g the . . iew of the District Judge (and the
Jud ges of t he Circ uil Court of Appeals concurred) that
beca use n o admissio n was clurg-cd at th e door ot (hc
r es taurant t he re was 110 pe rfo rman ce of th e song 'Sweet­
h ea rts' /J"blicly for profit w ithin the m ea ning of th e Copy·
ri g ht Act.
T h e Uni ted S ta tes Sup re me Court, how eve r,
took a uifi e n': l1 t v i.ew.
Justice Holmes, ilt <::pt>a king for
lhe court of la, t reso rt, had this to say:
"'If t he ri g ht s und .: r the copyright arc infrin ged on ly
by a perlofmall l;c \\ h l.:ll..." li lt-"
. .. • . ·' 1 J:
;" ; th e door
th e y a r e very il11)Jcriectly protected,
Per£ormaltccs Hu t
d ifi l·;·e n l ill kind iroUl those of [he defendants cou ld be
g-iven that m.ight CO J1I1Kle w itll and c\-·en destroy th e 5UC ­
C(:'ss o( thf~ 1110nopoly th a t the law inte nds th e plaintiffs
to havl:.
It is e n o ugh to say that t he re ic: n o n eed to
Thc d e fenuclIl 's
t.:un5lrue the s tatut!.; so narrowly,
performa l1 ces ~n.: 1I0t de t: mosyna ry.
They a r!.; part
of a lou:1I ior which th e public pays, a nd l lu' fa ct t hal
the price of th e W Ill) Ic.... i~ a ttributed to a part ic ul ar item
which th ost: 1)I'1;.· ... <.;lIt (lrc expec ted to order is 110t im ,
portant. It is lnll.; that th e music i s not th e so le ob j ec t,
but ncither i ~ th.' food, ,,,-,hich pro));"luly cou ld he got
rlleaper c lse wh t.: rc. The object is a repast in s urr ound ings
that to IJeoplc havillg limited powers of eOllvl:rsatio ll or
d.isliking th e rival 'JOise g iv e a lu xurious ple3surc not to
iJ e h ad trolll r..:a tlllg a . ,i[(:nt m ea l. Ii music d id not pay it
would bt: ;; ivell up, H it IJ ays it" pay~ out o( th e public's
pocket.
\Vh eth t:: r it pays or not the purpose of e mploy­
ing it i ~ profit and that i.e:. enough.
D ecree n· vc rs.cd,'
"It is strenuotlsly argued in behalf of th e defendant in
lite ill~ La lll causr.; that it was the view of the court of last
rl':-:01"l thal the fau!" a~ de-veloperl in th t.: Sh3nl ey s ituation,
showt:d that th~'r c was a direct charge to those who
p,ltrolliznl the rcs tauranl- -a direct cbargt; for anu on ac­
c..:Ol1llt of mll:')i c which wa~ collectcd fro m persons dill·
ill;..! th e re .
:-:' 0 far as appears, there wa~ only one 'item'
ch;lrgt:d for. to wit: food. I n fixing thc charge for fooel
the rl:staur;lllt proprietor undoubtedly took into consid·
cratin :l mally itl:1l1s ttl addition to th e cost of the food and
1 he preparation aod se n'ice of it.
There was 'attributed
t o' the 'itt:m' rood the musical entertainment a nd otltr.:r
attrac tions affordt:d the patrons,
The diner at nO tim e
h,lrI ~ h ::: . . ubj<.;ct of e ntertainment charge cal led to his
:I Ltel11ion exccpt in the high price of the food which h e
was permitted to llrocure.
This, in Ollf opinion, was an
il !) ircct "";1)' 0 " co l1t: c~ ill\~· th · ,: charge for musical enter·
ta inment fro m those who were thtrf t ll pay. Tu cU llstitlltl..·
a dir ec t c ha r ge. it sep ms to us that th e r e would have
<. )
I I ..... o il a Jmi ssion
fcc c h a rged at th e entranCe of the
uining hall o r a s peci fic fee for e ntc rt a inm e l1t \\·ould ha n . :
to be char[,f"d ! 'It.' li s te:'l..." r ; · il h l.: l wh i le ill o r about to
leave;: th e prem ises.
"There ·is another ea:,t: which s trih's lI :-. a~ hei.n ~ quilt:
hdpful. In th e (·a s(· of Harm~ e t a l. v. Cohen, 279 F ed,
2 76, District J uelg e Th o mpson hdd thal th e "la y in g o[
copyrighted nll1 :-, ic by a pialli <::t in a motion victure theatre
was •• n infringl' ment of th e co pyri ght .. nd relief was ac­
corded th e own e r thereof.
In that casc an a dmiss ion
c h art..;(: was co ll ected from a ll who entc red tl)(' th eatre [or
th e purposE' of vicw in g motion pictures,
Incidental to
th e ex lt ihitio l1 \.. . as th e playing by a pianist o f mu:-;ic
whi ( h. 10 (he pianis t, ~ee m c d appropriatc (0 th e d eve l·
opmcllt of I h~ play or eve nts wh ich were be ing pur·
Irayrrl nil th t' 'creen.
No se lec ti on of music waS mad e
UlJ hy th e Jlropri~t o r o f the th eatr e o r consented to h y
him in There was no fe e for mus ica l e nte r ·
tainment ca ll ed to the- atten tion of th c jJatroll of th c
the~tr e at any time,
" The pianist being permitt ed to use hi s own judgment
as to what musical se lec ti ons to play, played the mus ical
composition entit led 'Tulip Time' from the 'Zieg fe ld Fo l
li es, 19 19.' It was held by Jud ge Thompson that th e fur·
nishing of music was an a ttr act ion which added to the
enjoyment of persons vil:wing the motion }Jictures a nd
that al t hough the proprietor had nothing w hatev er to do
with the selection of th e musical compositions rendered ,
lhe fact tha t th e pianist was paid by th e proprietor to
supply the music maven the COll rt to hold tbat the pro ·
Do w n Am o ng Ih e Sl eepy H ills 01
Ten-Ten-Tennessee
Indiana Moon
That Old Gang 01 Mine
When You Walked Out
Someone Else Walked Right In
Love (My Heart Is Calling You)
You Tell Uer-I Stutter
You Know You Belong
to Somebody Else
(S o W h y Douol Y o u Leave Me A l o n e 1 )
Dearest
-
( YouOr e Ihe N ear e,,1 10 My H e arl)
.-
Ala Moana
Nuthin' _. __ But
By the Shalimar
Crinoline Days
.
-­
Frotn Ir\· jng Berlin's New lUusic Box Revue
Lady 01 the Evening
FJ·oJn Irving Berlin's New lUnsic Box Revue
Pack Up Your Sins
and Go 10 Ihe D ev il
Froln Irving Berlin's Ne\v
:\[n~ic
Box Hevue
Will She Come from the East?
Froln Irving flerJin's New Mnsic Box Revu {
IRVING BERLIN, Inc.
1607 Broadway, New York
prll·fo r w:lS iurr1isili IJ g music publicly for profit.
Th e r l'
being no direc t c harge on account 01 mu~ical e ntertain ·
ment furnished, th e re was what we term an ind i..,'(({
charge or fee there for.
"If our construction of the ovinio ll o f I h (' Su pre lllc
Court in the Shanley case, sup ra, be sound, that is to
say, i t there wa s found to b~ an indirect charge for th e
use of copyrighted musica l compositions because o( which
the court held that the owne r of the copyright was entitl erl
to r ( li f'" f, i he probkm ""ow !>resented for solutio n is not
so difficult.
"We have already stated that the B amberge r Co. makes
11 0
direct charge to tho se who avail themsel ves of th e
opportun it y to listen to its daily broadcasting programs.
The qu estion th en is: I s the broadcastin g done fa" an
indirect profit? In determining this we think it is proper
to look to the r eason for broadcasting at all.
Why was
it done? \Vhat was it done for? What was th e object,
or to
use the t erm of Justice Holmes: Wbat was th e
'purpose'?
We know the purpose of the restaur an t prn·
prietor and we know the purpose of the proprietor of thr­
mov ing picture theatre.
\\That was the purpose o f th ,. .
rlefe ndant in expen rl in g thousands of dollars in e~ tahli s hin ~
~nd operating this broadcasting station?
"Adopting the lan g uage of Justice Holmes, th e defend..,t
is not an 'eleemosynary institution.' A department store
is conducted for p.rofit, which leads us to the ve r y signifl ·
cant fact that th e cost of the broadcasting \"as charged
agai ns t the general expenses of th e bu,siness. It was made
a part of th e business system.
"Next we have the fact, already r eft. rred to, that the
def end a nt sells radio receiving instr uments a nd acces·
sor ies. \~fh cthe r ~ profit has resulted from such sa les is
not mat e r ia l in determining the object,
It is with~r) the
r ea lm s of proba bilit y that ma ny departments o f a large
store a t tim es show losses ra th e r than profit.~_
Par;l
phrasing tbe comments of Justice Holmes 'Wbetber it
p3yS o r n o t the purpose is profit and that is e nough .'
While the defen ,lant docs not broadcast the sale prices