After the Copyright Act of
1909 was passed, the American Society
of Composers, Authors, and Publishers (ASCAP) started asserting that
businesses needed to pay royalties for the right to play copyrighted music
in their establishments.
ASCAP sued two restaurants
that had orchestra playing music in the background while the diners ate
(actually they were performing 'comic operas', so it was more like dinner
ASCAP argued that this was
an infringement of their right to public performance.
The restaurants argued that
they did not charge admission to enter, they only made money by selling
food. The restaurants argued that they should not have to pay royalties
on a public performance unless the
restaurant patrons were charged a separate fee to listen to the music.
The Trial Court found for the
restaurants. ASCAP appealed.
The Appellate Court affirmed.
The US Supreme Court reversed.
The US Supreme Court found
that part of the reason people come to the restaurant was to hear the music.
Even if there isn't a separate 'fee' to listen, the restaurant is making
money off the performance because more people will come to the restaurant
to hear the music and then buy more food.
"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."