The opinion of the court was delivered by: SOLOMON
The American Society of Composers, Authors, and Publishers (ASCAP) is prosecuting this copyright infringement action against Columbia Artists Management, Inc. (CAMI) as a test case. ASCAP seeks to determine whether CAMI can avoid paying license fees when music in the ASCAP repertory is performed at concerts sponsored by local community concert associations which are created and maintained by CAMI.
CAMI admits that ASCAP's music is performed publicly for profit at these concerts without the copyright owner's permission, in violation of the Copyright Act, 17 U.S.C. §§ 1 and 101, and that this Court has jurisdiction under 28 U.S.C. § 1338. CAMI also admits that the performing artists and the local associations are liable for these infringements. CAMI's sole contention is that it is not responsible for the infringements.
ASCAP contends that CAMI is liable because CAMI organizes, supervises, and controls the local community concert associations which give the infringing concerts and because CAMI knowingly participates in the infringements.
CAMI manages concert artists. Much of CAMI's business consists of booking its artists with professional impresarios. Many communities, however, are too small to support professional impresarios. To exploit this market for its artists, CAMI has a Community Concerts Division which organizes and maintains hundreds of local citizens' associations which sponsor annual concert series.
These local associations are called "Community Concert Associations", and they constitute a substantial part of CAMI's business.
The infringement here occurred on January 9, 1965, when Todd Duncan and Camilla Williams sang "Bess, You Is My Woman Now" at a concert sponsored by the Port Washington Community Concert Association, a local association organized by CAMI.
Practically all of CAMI's community concert associations follow the same general pattern. When CAMI believes a community can support a local association, CAMI sends its field representative to meet with members of the community to explain CAMI's community concerts program. This representative distributes detailed literature on the structure of local associations, including a proposed "Community Concert Association Constitution", model by-laws, and the handbook "Outline of Community Concerts - Plan of Organization." He helps the community form its own association.
Before each concert season, the CAMI representative meets with the officers of the local association and reviews the expected budget for the coming season. He determines how much the association will be able to pay for artists, and he helps plan the concert season. The representative also helps plan the one-week membership campaign, during which the association sells tickets for the coming concert season.
CAMI provides promotional material for the membership campaign, at cost. This includes press releases, sample mayors' proclamations, newspaper editorials, and radio speeches to be delivered by prominent local citizens. The field representative helps plan the use of this material. He is present in the community throughout campaign week. He gives advice on publicity, helps ...