## Facts

- Music publishers holding copyrights in ten musical compositions alleged unauthorized public performances at a large computer-industry trade show (COMDEX/Fall) and an associated awards ceremony.
- The event organizer and co-sponsor (Interface entities) provided the venue and show infrastructure; third parties (exhibitors/entertainers) performed the songs at five exhibitor booths and at the awards event.
- ASCAP offered the organizer a blanket performance license for the event, but the organizer declined, asserting it was not itself performing music.
- The organizer monitored the show floor to enforce event rules, including a rule limiting music volume so it would not interfere with other exhibitors.
- The plaintiffs pursued vicarious and contributory infringement theories against the organizer rather than suing the exhibitors or entertainers as direct infringers.
- The organizer filed a third-party claim against McGraw-Hill seeking contribution and/or indemnity under federal copyright law.

## Issues

1. Whether the plaintiffs established a prima facie case of copyright infringement, including proof that the third-party performers lacked authorization to perform the copyrighted works.
2. If direct infringement were shown, whether a trade-show organizer could be held vicariously or contributorily liable for exhibitors’ and entertainers’ performances.
3. Whether federal copyright law permits a defendant found liable for infringement to obtain contribution or indemnity from a third party.

## Decision

- Judgment entered for the defendants on the infringement claims.
- The court held the plaintiffs failed to prove an element of prima facie infringement: lack of authorization for the performances by the exhibitors and entertainers.
- Because direct infringement was not established, theories of vicarious and contributory liability did not provide a basis for recovery.
- The third-party claim for contribution/indemnity failed because there was no underlying infringement liability.

## Legal Principles

- A prima facie case of copyright infringement includes proof of lack of authorization; non-authorization is part of the plaintiff’s affirmative case, not an affirmative defense.
- Vicarious and contributory copyright liability require proof of direct infringement by a primary actor before secondary liability can attach.
- Vicarious liability generally requires (1) the right and ability to supervise the infringing conduct and (2) a direct financial interest in that conduct.
- Contributory liability generally requires knowledge of infringing activity and inducement, causation, or material contribution to that infringement.
- Courts are reluctant to recognize contribution or indemnity among alleged copyright infringers absent clear statutory authorization; the Act’s remedial scheme does not expressly provide such rights.

## Conclusion

The court rejected the publishers’ claims because they did not prove the performers lacked permission to play the songs, defeating direct infringement and, therefore, secondary liability theories against the event organizer; without liability, the organizer’s contribution/indemnity claim against a third party also failed.


Polygram Int'l Publ'g, Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314 (D. Mass. 1994)