## Facts

- Jerome H. Remick & Co. owned the copyright in the musical composition “Dreamy Melody.”
- American Automobile Accessories Co. manufactured and sold radio equipment for commercial gain and operated a Cincinnati radio broadcasting station (“Station WLW”) as an advertising and publicity medium for its products.
- The station operated under a federal license obtained to operate for commercial purposes.
- The station publicized programming through newspapers and bulletins and announced its station identification at the beginning and end of broadcasts.
- Broadcasting costs were charged to the company’s advertising and publicity account.
- A rendition of “Dreamy Melody” was broadcast over the station without the copyright owner’s authorization.
- The copyright owner sued in equity seeking an injunction and damages, alleging the broadcast was a “public performance for profit” prohibited by the Copyright Act of 1909.

## Issues

1. Whether broadcasting a musical composition by radio constitutes a “public performance” within the meaning of the Copyright Act of 1909.
2. Whether a broadcast heard by listeners dispersed in private locations can be “public,” even without a physically gathered audience.
3. Whether using music in broadcasts to advertise and support a commercial business satisfies the statutory requirement that the public performance be “for profit.”

## Decision

- The district court granted the defendant’s motion to dismiss and dismissed the bill in equity.
- The court held the complaint failed to allege facts showing a statutory “public performance for profit” of the copyrighted composition.
- The court effectively treated radio broadcasting as outside the statute’s contemplated scope, and viewed the “public” and “for profit” elements as not met on the pleaded facts.

## Legal Principles

- Under the Copyright Act of 1909, infringement of a musical composition’s performance right required a “public performance for profit.”
- A court may dismiss an infringement claim at the pleading stage where the alleged conduct, as described, does not fall within the statutory category invoked (here, “public performance for profit”).
- The district court construed “public performance” narrowly, emphasizing the lack of a physically assembled audience and the individualized reception of broadcasts.
- The district court construed “for profit” narrowly, indicating that indirect commercial benefit through advertising and publicity was insufficient without a more direct profit nexus tied to the performance.

## Conclusion

The district court dismissed the copyright owner’s suit, concluding that an unauthorized radio broadcast of a song, as alleged, did not constitute a “public performance for profit” under the Copyright Act of 1909.


Jerome H. Remick & Co. v. Am. Auto. Accessories Co., 298 F. 628 (S.D. Ohio 1924)