Polygram International Publishing, Inc. v. Nevada/TIG, Inc.
32 U.S.P.Q. 2d (BNA) 1481, 855 F. Supp. 1314, 1994 U.S. Dist. LEXIS 8830 (1994)
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Rule of Law:
To establish a claim for vicarious or contributory copyright infringement against a third party, a plaintiff must first satisfy its prima facie burden of proving a direct infringement by the primary actor, which includes presenting evidence that the primary performer lacked authorization to perform the copyrighted work.
Facts:
- Interface Group organized and promoted COMDEX/Fall, a large computer industry trade show, in October 1991 in Las Vegas.
- Prior to the show, the American Society of Composers, Authors, and Publishers (ASCAP) contacted Interface to sell it a blanket license agreement, but Interface declined, believing a license was unnecessary as it did not intend to perform music itself.
- Interface rented booth space to over 2,000 exhibitors and provided them with Rules and Regulations, which advised exhibitors that it was their own responsibility to obtain proper copyright licenses for any music played.
- During the trade show, ASCAP investigators observed five different exhibitors playing ten specific copyrighted musical compositions owned by the plaintiffs.
- Interface also co-sponsored an awards ceremony with BYTE magazine, where investigators heard a band and a disc jockey perform four other songs copyrighted by the plaintiffs.
- Interface's gross revenues from the trade show, derived from booth rentals, admission fees, and advertising, exceeded $44 million.
Procedural Posture:
- Plaintiffs, copyright holders and members of ASCAP, filed a civil action for copyright infringement against Interface Group in the U.S. District Court for the District of Massachusetts.
- The parties initially filed cross-motions for summary judgment.
- At the court's suggestion, the parties agreed to forego the summary judgment motions and proceed with a one-day, non-jury trial based on stipulated facts, affidavits, and deposition transcripts.
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Issue:
Does a plaintiff seeking to hold a trade show organizer vicariously liable for copyright infringement by its exhibitors meet its prima facie burden of proof by showing only that the organizer lacked a performance license, without also proving that the exhibitors themselves were unauthorized to perform the copyrighted works?
Opinions:
Majority - Keeton, J.
No. To establish a prima facie case for third-party copyright liability, a plaintiff must prove a direct infringement by the primary performer, which includes the essential element that the performer lacked authorization. It is insufficient to merely prove that the third-party defendant, such as a trade show organizer, lacked authorization. The burden of proof for all elements of the prima facie case, including the direct performer's lack of authorization, rests with the plaintiff. Here, the plaintiffs only stipulated that Interface lacked a license and offered no evidence or even a good-faith allegation under oath at trial that the exhibitors, band, or disc jockey were themselves unlicensed. Because the plaintiffs failed to establish the fifth element of their prima facie case—the performer’s lack of authorization—they have failed to prove a direct infringement occurred, which is a prerequisite for any claim of vicarious or contributory infringement.
Analysis:
This case clarifies the evidentiary requirements for establishing third-party copyright liability, emphasizing that vicarious or contributory infringement is derivative of a direct infringement. The court's holding prevents plaintiffs from taking a procedural shortcut by suing a deep-pocketed third party without first proving the underlying illegal act. It establishes that the burden of proof is squarely on the copyright holder to demonstrate that the actual performers (e.g., exhibitors, musicians) were unlicensed. This precedent reinforces the foundational elements of an infringement claim and serves as a caution against pursuing litigation based on incomplete evidence, even in situations where the third party might otherwise seem to fit the profile for vicarious liability.
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