Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)

Author: Justice Burger

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Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)

MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE DOUGLAS joins, dissenting.

In Fortnightly Corp. v. United Artists, 392 U.S. 390, 402 (1968), Mr. Justice Fortas observed that cases such as this call "not for the judgment of Solomon, but for the dexterity of Houdini." There can be no really satisfactory solution to the problem presented here until Congress acts in response to longstanding proposals. My primary purpose in writing is not merely to express disagreement with the Court, but to underscore what has repeatedly been stated by others as to the need for legislative action. Radio today is certainly a more commonplace and universally understood technological innovation than CATV, for example, yet we are, basically, in essentially the same awkward situation as in the past when confronted with these problems. We must attempt to apply a statute designed for another era to a situation in which Congress has never affirmatively manifested its view concerning the competing policy considerations involved.

Yet the issue presented can only be resolved appropriately by the Congress; perhaps it will find the result which the Court reaches today a practical and equitable resolution, or perhaps it will find this "functional analysis"{1} too simplistic an approach, cf. Teleprompter Corp. v. CBS, 415 U.S. 394, 415 (1974) (BLACKMUN, J., dissenting), and opt for another solution.

The result reached by the Court is not compelled by the language of the statute; it is contrary to the applicable case law and, even assuming the correctness and relevance of the CATV cases, Fortnightly, supra, and Teleprompter, supra, it is not analytically dictated by those cases. In such a situation, I suggest,

the fact that the Copyright Act was written in a different day, for different factual situations, should lead us to tread cautiously here. Our major object . . . should be to do as little damage as possible to traditional copyright principles and to business relationships, until the Congress legislates and relieves the embarrassment which we and the interested parties face.

Fortnightly, supra at 404 (Fortas, J., dissenting).

As the Court’s opinion notes, ante at 160, in Buck v.Jewell-LaSalle Realty Co., 283 U.S. 191 (1931), answering a precisely phrased certified question, the Court construed the Copyright Act in a manner which squarely conflicts with what is held today. Congress, despite many opportunities, has never legislatively overruled Buck, supra. It was not overruled in Fortnightly, but treated "as limited to its own facts." 392 U.S. at 396-397, n. 18. Even assuming the correctness of this dubious process of limitation, see Fortnightly, supra at 405 (Fortas, J., dissenting); Teleprompter, supra at 415 (BLACKMUN, J., dissenting), Buck is squarely relevant here, since the license at issue expressly negated any right on the part of the broadcaster to further license performances by those who commercially receive and distribute broadcast music. Moreover, even accepting, arguendo, the restrictive reading given to Buck by the Court today, and assuming the correctness of Fortnightly and Teleprompter in the CATV field, it is not at all clear that the analysis of these latter cases supports the result here.{2} Respondent was more than a "passive beneficiary." Fortnightly, supra at 399. He took the transmission and used that transmission for commercial entertainment in his own profit enterprise, through a multi-speaker audio system specifically deigned for his business purposes.{3} In short, this case does not call for what the Court describes as "a ruling that a radio listener `performs’ every broadcast that he receives . . . ," ante at 162. Here, respondent received the transmission and then put it to an independent commercial use. His conduct seems to me controlled by Buck’s unequivocal holding that:

One who hires an orchestra for a public performance for profit is not relieved from a charge of infringement merely because he does not select the particular program to be played. Similarly, when he tunes in on a broadcasting station for his own commercial purposes, he necessarily assumes the risk that, in so doing, he may infringe the performing rights of another.

283 U.S. at 198-199. See also Herbert v. Shanley Co., 242 U.S. 591 (1917).

In short, as MR. JUSTICE DOUGLAS observed in the Teleprompter case: "The Court can read the result it achieves today only by `legislating’ important features of the Copyright Act out of existence." 415 U.S. at 421. In my view, we should bear in mind that

[o]ur ax, being a rule of law, must cut straight, sharp, and deep; and perhaps this is a situation that calls for the compromise of theory and for the architectural improvisation which only legislation can accomplish.

Fortnightly, supra at 408 (Fortas, J., dissenting).


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Chicago: Burger, "Burger, J., Dissenting," Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) in 422 U.S. 151 422 U.S. 168–422 U.S. 170. Original Sources, accessed January 22, 2019,

MLA: Burger. "Burger, J., Dissenting." Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975), in 422 U.S. 151, pp. 422 U.S. 168–422 U.S. 170. Original Sources. 22 Jan. 2019.

Harvard: Burger, 'Burger, J., Dissenting' in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975). cited in 1975, 422 U.S. 151, pp.422 U.S. 168–422 U.S. 170. Original Sources, retrieved 22 January 2019, from