ABSTRACT
The question simmered do\vn is: What is meant by the words "publicly for profit'!? Fortunately, those words have been construed by the United State$ Supreme Court in the case of Herbert v. Shanley Co., 242 U. S. 591, 37 Sup. Ct. 232, 61 L. Ed. 511, a case frequently referred to by counsel on both sides of this cause. The facts there were as follows: The Shanley Company conducted a public restaurant in New York City wherein was located a platform or small stage upon which orchestral selections were rendered, and songs were sung by paid performers for the entertainment of persons visiting the restaurant. No admission fee was charged. The owner of a copyrighted song known as J'SweetHearts," allegin~ that his property rights were
being~ invaded because his song was bemg sung by Shanley's performers, sought injunctive relief in the United States courts for the Southern District of New York. This relief was denied, it being the view of the District Judge (and the Judges of the Circuit Court of Appeals concurred) that because no admission was char?.ed at the door of the restaurant, there was no perfonning of the Song 'Sweethearts" publicly for profit within the meaning of the Copyright Act. The United States Supreme Court, however, took a different .view. Justice Holmes, ill speaking for the court of last resort, had this to say:
It is strenuously argued in behalf of the ctefendant in the instant cause that it was the VIew of the court of last resort that the facts, as developed in the Sb;inley situation-; showed that there was a drrect charge to those who-patronized the restaurant-a dir-ect charge for and on account of music wblch was eollected from persons dining there. So far as app.ea:rs; there was-only one ~'item'' charged for, to wit, food. In fucing the cha.rge..;for food the restaurant proprietor undoubtedly took into consideration many items in addition to the cost of the food and the preparation and service of it. There was "attributed to" the "item" f~od the musical entertainment and other attraetions afforded the patrons. The diner at no time had the subject of entertainment charge called to his attention except in the high price of the food which he was permitted to procure. This, in our opinion, was an indirect way of collecting the charge for musical entertainment from those who were there to pay. To constitute a direct charge, it seems to us that there would have to be an admission fee charged at the entrance to the. dining hall or a specific fee for entertainment would have to be charged the listener either while in or about to leave the premises.
