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Broadcast Music, Inc. v. Columbia Broadcasting System, Inc.

Supreme Court of the United States

January 15, 1979, Argued ; April 17, 1979, Decided 1

No. 77-1578

Opinion

 [*4]   [***6]   [**1554]  MR. JUSTICE WHITE delivered the opinion of the Court.

 This case involves an action under the antitrust and copyright laws brought by respondent Columbia Broadcasting System, Inc. (CBS), against petitioners, American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music,  [499]  Inc. (BMI), and their members and affiliates. 3 The basic question presented is whether the issuance by ASCAP and BMI to CBS of blanket licenses to copyrighted musical compositions at fees negotiated by them is price fixing per se unlawful under the antitrust laws.

 [****7]  I

CBS operates one of three national commercial television networks, supplying programs to approximately 200 affiliated stations and telecasting approximately 7,500 network programs per year. Many, but not all, of these programs make use of copyrighted music recorded on the soundtrack. CBS also owns television and radio stations in various cities. It is "'the giant of the world in the use of  [***7]  music rights,'" the "'No. 1 outlet in the history of entertainment.'" 4

Since 1897, the copyright laws have vested in the owner of a copyrighted musical composition the exclusive right to perform the work publicly for profit, 5 but the legal right is not self-enforcing. In 1914, Victor Herbert and a handful of other composers organized ASCAP because those who performed [****8]   [*5]  copyrighted music for profit were so numerous and widespread, and  [**1555]  most performances so fleeting, that as a practical matter it was impossible for the many individual copyright owners to negotiate with and license the users and to detect unauthorized uses. "ASCAP was organized as a 'clearing-house' for copyright owners and users to solve these problems" associated with the licensing of music. 400 F.Supp. 737, 741 (SDNY 1975). As ASCAP operates today, its 22,000 members grant it nonexclusive rights to license nondramatic performances of their works, and ASCAP issues licenses and distributes royalties to copyright owners in accordance with a schedule reflecting the nature and amount of the use of their music and other factors.

BMI, a nonprofit corporation owned by members of the broadcasting industry, 6 was organized in 1939, is affiliated with or represents some 10,000 publishing companies and 20,000 authors and composers, and operates [****9]  in much the same manner as ASCAP. Almost every domestic copyrighted composition is in the repertory either of ASCAP, with a total of three million compositions, or of BMI, with one million.

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441 U.S. 1 *; 99 S. Ct. 1551 **; 60 L. Ed. 2d 1 ***; 1979 U.S. LEXIS 84 ****; 201 U.S.P.Q. (BNA) 497; Copy. L. Rep. (CCH) P25,064; 1979-1 Trade Cas. (CCH) P62,558

BROADCAST MUSIC, INC., ET AL. v. COLUMBIA BROADCASTING SYSTEM, INC., ET AL.

Prior History:  [****1]  CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

Disposition:  562 F.2d 130, reversed and remanded.

CORE TERMS

license, blanket, music, compositions, rights, Sherman Act, users, composers, price fixing, antitrust, negotiate, copyright owner, network, television, cases, decree, practices, television network, anti trust law, per se rule, per se violation, competitors, costs, restraint of trade, consent decree, monopoly, holders, musical composition, broadcasters, publishers

Antitrust & Trade Law, Regulated Industries, Higher Education & Professional Associations, General Overview, Regulated Practices, Price Fixing & Restraints of Trade, Per Se Rule & Rule of Reason, Sherman Act, Sherman Act, Per Se Violations, Governments, Legislation, Overbreadth