On Tue, 1 Jul 1997, Laurie Lye <llye[_at_]acad.cc.whecn.edu> wrote:
>
> Could someone kindly guide me to a concise source which would explain
> the law on playing music over loudspeakers in a private business?
>
> The scenario: Two businesses, one a fast food restaurant, the other
> an antique mall, want to have music playing. They would prefer not to
> be forced to subscribe to the cable services providing music. May
> they play music they have privately recorded, or the radio? What
> are their rights/responsibilites?
The best way of understanding section 110 [5], I think, is to start from Buck v. Jewell La Salle Realty, 283 US, 202 [1931]. This was the first case to establish the concept of single rendition/ multiple public performance. The same approach was adopted in Society of European Stage Authors and Composers v. New York Hotel Statler Co., 19 F. Supp. 1 [1937]. Courts, however, rejected applying this concept to cases involving CATV, Fortnightly Corp v. United Artists Television, 392 US 390 [1968]; Teleprometer Corp v. Columbia Broadcasting System, 415 US 394 [1974].
This issue surfaced again in Twentieth Century Music v. Aiken, 356 F.Supp. 272 [1973]. The defendant operated a fast food shop and turned on his receiving apparatus which was connected to four louspeakers. The Court of first instance started its opinion by asking " whether this is a Jewell of a case for the plaintiff or a Fortnightly for the defendant. The case reached the Supreme Court which held for the defendant on the grounds that his action did not constitute a performacne under the 1909 Act, 422 us 151 [1975].
The Senate Report of 1976 which was drafted after Aiken made it clear that the exemption should not apply where broadasts are transmitted by means of loudspeakers or similar devices in such establishments as bus terminals,... fast food shops of the type involved in the Aiken case, 122 Cong.Rec. 1546 [February 6]. The House of Representatives on the other hand accepted Aiken as the outer limit of the exemption, and tried to preserve the full effect of Aiken. Accordingly, it proposed an amendment to that provision which would have replaced the Senate's wording of "further transmitted to the Public" by "where there is a further transmission beyond the place where the receiving apparatus is located" 5 USCCAN 5659, 5815 [1976]. The Conference Committee adopted the Senate's wording together with the essence of the House of representative amendment, ibid at 5816. This approach resulted in very contradictory decisions:
Sailor Music et al v. The Gap Stores, 516 F. sUPP. 923
BMI v. The United States Shoe Corporation, 678 F.2d 816 [1982].
Bruce Springsteen v. Plaza Roller Dome, 602 F.Supp.1113 [1985].
Rodges v. Eighty Four Lumber 617 F.Supp. 1021 [1985].
Merrill v. Bill Miller's Bar 688 F.Supp. 1172 [1988].
International Korwin Corp v. Tadeusz Kowalczyk, 665 F.Supp. 652 [1987].
Crabshaw Music v. K-Bob;s of El Paso 774 F.Supp. 763 [1990].
Hickory Grove Music v. Andrews 749 F.Supp. 1031 [1990].
Edison Brothers Stores v. BMI 760 F.Supp. 767 [1991].
BMI v. Claire's Boutique 754 F.Supp. 1324 [1990]; 949 F 2d 1482 [1991].
Cass County Music Company v. Vasfi Muedini 821 F.sUPP. 1278 [1993].
You might find the following articles interesting:
Bernard Korman, Performance Rights in Music Under Sections 110 and 118 of the 1976 Copyright Act, 22 New York Law School Review 521 [1976-77].
David Shipley, Copyright Law and Your Neighbourhood Bar and Grill, 29 Arizona Law Review, 475 [1987].
John Wilk, Seeing the Words and Hearing the Music: Contradictions in the Construction of Section 110 [5], 45 Rutgers Law Review 783 [1993].
Suzan Maslow, "WATTs" the Perimeter of the Doctrine of the Communication of Radio Broadcast Under Section 110[5] of the 1976 Copyright Act, 55 Temple Law Quarterly 1056 [1982].
Makeen Makeen mmakeen[_at_]sas.ac.ukPh.D. Candidate
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