Herbert v. Shanley Co. - 242 U.S. 591, 37 S. Ct. 232 (1917)

Rule:

If the rights under a music copyright are infringed only by a performance where money is taken at the door they are very imperfectly protected. Performances could be given that might compete with and even destroy the success of the monopoly that the law intends the copyright plaintiffs to have. It is enough to say that there is no need to construe the statute so narrowly.

Facts:

In both cases decided by the appellate court, defendants arranged for public performances of copyrighted performances with plaintiffs' permission during meal times. A fee was charged by one of defendants but that defendant stated that the fee was attributed to food customers ordered. Neither defendant charged admission for the stated purpose of allowing customers to view the copyrighted performances. The appellate court found that the copyrights were not infringed.

Issue:

Does the performance of a copyrighted musical compostion 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?

Answer:

Yes.

Conclusion:

The defendants' performances of plaintiffs' music in hotels or restaurants 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 expected to order, is not important. It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere. The object is a repast in surroundings that to people having limited powers of conversation or disliking the rival noise give a luxurious pleasure not to be had from eating a silent meal. If music did not pay it would be given up. If it pays it pays out of the public's pocket. Whether it pays or not the purpose of employing it is profit and that is enough.