Von Horn, Brent

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DePaul Journal of Art, Technology & Intellectual Property Law Volume 2 Issue 2 Spring 1992 Article 9 Edison Brothers Stores, Inc. v. Broadcast Music, Inc. 954 F.2d 1419 (8th Cir. 1992) Brent Von Horn Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Brent Von Horn, Edison Brothers Stores, Inc. v. Broadcast Music, Inc. 954 F.2d 1419 (8th Cir. 1992), 2 DePaul J. Art, Tech. & Intell. Prop. L. 57 (1992) Available at: https://via.library.depaul.edu/jatip/vol2/iss2/9 This Case Summaries is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact digitalservices@depaul.edu. Edison Brothers Stores, Inc.v. Broadcast Music, Inc.,954 F.2d 1419 (8th Cir. 1992).IntroductionThe Eighth Circuit recently held that the unli-censed use of radio broadcasts in retail stores is notan infringement of the copyrights of the musicplayed. The court of appeals held that use of oneradio per store comes under the homestyle excep-tion to copyright enforcement in the Copyright Act,'no matter how many stores are owned by a singleretailer, how large each store is, or how easily theretailer can afford to pay for the use of the music.FactsBroadcast Music, Inc. (BMI) licensed the use ofcopyrighted lyrical material. Edison BrothersStores, Inc. (Edison) owned a chain of approxi-mately 2500 retail clothing and shoe stores doingbusiness as Chandlers, Jeans West, Fashion Con-spiracy, Size 5-7-9 Shops, J. Riggins, Bakers, theWild Pair, and others. Most of Edison's storesplayed radio broadcasts for the enjoyment of em-ployees and customers. Edison's radio usage policylimited the stores to using simple and inexpensiveequipment. The policy provided that only simple,radio-only receivers with portable speakers placedwithin fifteen feet could be used.About 220 of Edison's stores had more sophisticatedsound systems than allowed by this policy. Edisonpaid for the licenses for these stores through BMIand other commercial music services. BMI wantedEdison to pay to license all 2,500 of its stores. Onappeal, after considering BMrs arguments requir-ing licensing, this court affirmed the lower court'ssummary judgment in favor of Edison.Legal AnalysisThe so-called homestyle exception of the CopyrightAct [section 110(5)] provides exemptions from copy-right enforcement for certain performances. Thepublic display of a copyrighted work on a "singlereceiving apparatus of a kind commonly used inprivate homes" does not infringe the copyright un-less a separate charge is made for the music.2The first argument presented by BMI's appeal con-cerned Edison's multiple locations. BMI wanted thecourt to interpret the homestyle exception of theCopyright Act in such a way that Edison lost itsprotection as soon as it installed the second radioin the second store. The court held that the numberof stores involved did not matter.' The court did notaccept BMrs reading of section 110(5); instead itheld that the homestyle exception is to be appliedto each separate location of performance inde-pendent of other uses elsewhere. 4 Thus, Edison'sradio usage policy fits the homestyle exception,because the equipment allowed each store by Edi-son's policy conforms to that described by the stat-ute.BMrs second argument was that the size of a storeaffects its qualification under the homestyle excep-tion. BMI bases this argument on the legislativehistory of the homestyle exception, claiming thatCongress passed the homestyle exception in re-sponse to the Supreme Courfts decision in Twenti-eth Century Music Corp. v. Aiken.5 BMI argued thatthe size of Aiken's store represented the maximumsize of a store which qualified under the homestyleexception. Edison's stores on average were approxi-mately two to three times larger than Aiken's store.The court found that the type of equipment used isa more probative factor than the size of the store,because the Copyright Act focuses on the equip-ment being used and therefore the size of the storeis moot.6BMrs third argument pointed again to legislativehistory to support its contention that a section110(5) exemption is available only if the store isunable to pay for its use of music or is not ofsufficient size to justify, as a practical matter, asubscription to a commercial music service. As withthe square footage requirement, the court refusedto read into the Copyright Act what clearly was notthere. The court stated that Congress did not in-tend that a size-and-financial-means test be part ofthe statute. It held that the focus of the CopyrightAct is on the equipment in use, regardless of thesize of the store or its ability to pay for the use ofthe music. 7ConclusionThe Edison court held that the unlicensed use ofmusic broadcast by radio in retail stores is notinfringement of the copyrights involved, accordingto the homestyle exception to the Copyright Act,and in accord with treaty obligations of the UnitedStates under Article 11 of the Berne Convention.8The exception applies only when the equipmentused is such that might be found in a typical privatehome. In applying the exception, neither the size of57 Journal of Art & Entertainment Law1Von Horn: Edison Brothers Stores, Inc. v. Broadcast Music, Inc. 954 F.2d 14Published by Via Sapientiae, 2016

Edison Brothers Stores, Inc. v. Broadcast Music, Inc. 954 F.2d 1419 (8th Cir. 1992)

https://via.library.depaul.edu/cgi/viewcontent.cgi?article=1514&context=jatip

Edison Brothers Stores, Inc. v. Broadcast Music, Inc. 954 F.2d 1419 (8th Cir. 1992)

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