## Facts

- Jerome H. Remick & Co. owned the copyright in the musical composition “Dreamy Melody.”
- American Automobile Accessories Co. manufactured and sold radio products for pecuniary profit.
- The defendant operated radio station WLW in Cincinnati as an advertising and publicity medium to bring its products to public attention and stimulate sales.
- The station broadcast “Dreamy Melody” without the copyright owner’s authorization.
- The defendant treated broadcasting expenses on its books as advertising and publicity costs.
- The plaintiff filed a bill in equity seeking an injunction and damages for copyright infringement.
- The district court dismissed the bill on the defendant’s motion; the plaintiff appealed.

## Issues

1. Whether radio broadcasting of a copyrighted musical composition constitutes a “public performance” under § 1 of the Copyright Act of 1909, even though listeners are dispersed.
2. Whether such a broadcast is “for profit” when no admission fee is charged, but the station is operated as part of a commercial advertising program.
3. Whether the complaint’s allegations were sufficient to state a claim for infringement, making dismissal improper.

## Decision

- The Sixth Circuit reversed the dismissal and remanded for further proceedings.
- The court held that the alleged radio broadcasts constituted public performances within the statute.
- The court held the broadcasts were “for profit” because they were used to advertise and support the defendant’s profit-seeking business, even absent admission fees.
- The court concluded the bill adequately alleged ownership, unauthorized public performance, and profit-oriented use, so dismissal at the pleading stage was error.

## Legal Principles

- A copyright statute may apply to later-developed technologies when, fairly construed, the new use falls within the statute’s intent and meaning; later invention alone does not exempt conduct from coverage.
- Broadcasting a musical work to a large number of listeners is a public performance even if the audience is not physically gathered and cannot interact with each other.
- A performance may be “for profit” under the 1909 Act without direct charges or proof of actual profit if the performance is part of a commercial enterprise intended to advance business interests (as recognized in Herbert v. Shanley Co.).
- At the motion-to-dismiss stage, allegations of copyrighted ownership and unauthorized public performance for profit are sufficient to state an infringement claim.

## Conclusion

The court held that unauthorized radio broadcasting of a copyrighted song by a commercial station operated to advertise the broadcaster’s business states a claim for “public performance for profit” under the 1909 Copyright Act, requiring reversal of the dismissal and remand.


Jerome H. Remick & Co. v. Am. Auto. Accessories Co., 5 F.2d 411 (6th Cir. 1925)