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THE LAW OF MOTION PICTURES
Defendants claimed that the performance was not “for profit” within the meaning of Section one, subdivision (e) of the Copyright Act, as no admission was charged at the door, the only revenue exacted being for the refreshments served. It was held that this plea was untenable, for, as Mr. Justice Holmes pointed out: “If the rights under the copyright are infringed only by a performance where money is taken at the door, they are very imperfectly protected. Performances not different in kind from those of the defendants could be given that might compete with and even destroy the success of the monopoly that the law intends the plaintiffs to have. It is enough that there is no need to construe the statute so narrowly. The defendant’s performances are not eleemosynary. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to ord^r is not important. It is true that the music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere. 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. If music did not pay it would be given up. If it pays, it pays out of the public’s pocket. Whether it pays or not, the purpose of employing it is profit and that is enough.”
In the case of a motion picture theatre where admission is charged at the door, there can be no defense on that score, for admittedly the entire performance is for profit and gain, a profit which is obtained by direct methods.