## Facts

- Copyright owners of musical works sued commercial venues that arranged live performances of their copyrighted compositions for diners.
- In one case, a hotel had an orchestra perform a copyrighted march in its dining room during mealtimes; the musicians were employed and paid by the hotel.
- In the other case, a restaurant on Broadway had professional singers perform a copyrighted song on a stage, accompanied by an orchestra.
- The works at issue were copyrighted, and at least one composition was separately published and separately copyrighted in addition to being part of a larger stage work.
- Neither venue charged patrons a separate admission fee to hear the music; the performances were offered as part of the overall dining and entertainment experience.
- Lower courts ruled for the venues, treating “for profit” as requiring an admission charge (and, in the restaurant case, also limiting rights based on separate publication and copyrighting).

## Issues

1. Whether a restaurant or hotel’s public performance of a copyrighted musical composition, with no separate admission charge, is a public performance “for profit” under § 1(e) of the Copyright Act of 1909.
2. Whether “for profit” is limited to situations where money is directly charged for admission to hear the music.

## Decision

- The Supreme Court reversed the judgments for the venues.
- The Court held that performing copyrighted music in a restaurant or hotel without an admission charge can still be a public performance “for profit.”
- The Court treated the music as part of the paid-for service offered to patrons and therefore within the copyright owner’s exclusive public-performance right.

## Legal Principles

- Under § 1(e) of the 1909 Copyright Act, “public performance for profit” is not confined to performances where an admission fee is collected.
- A performance is “for profit” when it is an incident of a commercial service for which the public pays, even if the music is not separately itemized or separately billed.
- Commercial venues cannot avoid liability by characterizing music as “free” when it functions to attract patrons and contribute to the establishment’s revenue.

## Conclusion

The Supreme Court held that restaurants and hotels infringe copyrighted public-performance rights when they provide live performances as part of a paid commercial experience, even if patrons are not charged a separate admission fee to hear the music.


Herbert v. Shanley Co., 242 U.S. 591 (1917)