Polygram International Publishing, Inc. v. Nevada/TIG, Inc.

OPINION

This is a civil action for copyright infringement. Jurisdiction is based on 28 U.S.C. § 1338(a). Plaintiffs are members of the American Society of Composers, Authors, and Publishers (ASCAP) and are the copyright holders of ten songs played by various exhibitors and entertainers at a computer trade show and awards ceremony. Defendants organized the trade show and co-sponsored the awards ceremony. Plaintiffs seek to hold defendants liable under the federal Copyright Act, 17 U.S.C. § 101 et. seq., for ten counts of copyright infringement based on performances of copyrighted music by the exhibitors and entertainers.

The contentions of the parties raise two questions of first impression in this Circuit: first, whether a trade show organizer is liable, either vicariously or as a contributory *1318 infringer, for the copyright violations of its exhibitors and entertainers; second, whether the defendant in a copyright action can recover either contribution or indemnity from a third-party defendant. The disposition of the case, however, turns on the determination of the required elements of a prima facie case of copyright infringement.

For the reasons stated below, I conclude that plaintiffs have failed to establish a prima facie case of copyright infringement and that judgment for the defendants must enter. Because I have had to decide reasonably disputable legal issues, however, and a higher court might decide them differently, this Opinion, to facilitate final disposition, also addresses other issues bearing on liability and damages.

I. Procedural History

Early in the history of this case, the parties filed cross-motions for summary judgment. As a matter of prudential case management, it is my practice to discourage such motions and to encourage, in their stead, a trial on stipulated facts of the potentially dispositive issues that are the subject of one or both of the proposed cross-motions. This practice often results in a more efficient use of judicial resources because it allows the court to decide the case in one proceeding even if concluding that the stipulated historical facts leave undecided some evaluative adjudicative fact that must be resolved by a finding of “fact” rather than decision “as a matter of law.” See, e.g., Continental Grain v. Puerto Rico Maritime Shipping, 972 F.2d 426, 429 n. 7 (1st Cir.1992) (commending to district courts the use of this procedural alternative to cross-motions for summary judgment); see also Buirkle v. Hanover Ins. Companies, 882 F.Supp. 469, 471-72 (D.Mass.1993).

The parties were receptive to the court’s suggestion of a trial, and on February 9, 1994, the parties appeared before the court for a one-day, non-jury trial. Affidavits, deposition transcripts, an exhibit book, stipulations, and proposed findings were received in evidence. See Transcript, Docket No. 63. The American Society of Association Executives earlier filed a brief amicus curiae (Docket No. 16).

During the trial, each party made objections to parts of the evidence offered by the party’s opponents. Some of the evidence was received for limited purposes only; other objections were reserved. As to the reserved objections, I find, as fact-finder, that fully weighing the challenged evidence would not lead me to make findings different in any way from those recited in this Opinion. The objections are therefore moot.

II. Findings of Historical Fact

Defendant Nevada/TIG, Inc. was dismissed from this ease by stipulation (Docket No. 21). The two remaining defendants, Interface Group-Massachusetts, Inc. and Interface Group-Nevada, Inc. (collectively “Interface”) organize and promote major conventions and trade shows, including the world’s largest trade show for the computer industry, “COMDEXTFall.”

The plaintiffs are members of the American Society of Composers, Authors, and Publishers (ASCAP), and have granted to AS-CAP the non-exclusive right to license public performances of their copyrighted musical compositions. ASCAP functions as a clearinghouse that takes in license fees from those who wish to perform or authorize performances of copyrighted material and then distributes these fees, after deducting operating costs, to its more than 50,000 members. AS-CAP also prepares and conducts copyright infringement litigation on behalf of its members to enforce their copyrights. ASCAP’s royalty distributions are the single largest source of income for most composer and songwriter members.

Almost two years before the COM-DEX/Fall show, ASCAP communicated with Interface in the hope of entering into a license agreement that would authorize performances of any of the copyrighted music in the ASCAP repertory at Interface’s trade shows. ASCAP has licensed other trade show organizers, but despite repeated offers by ASCAP, Interface did not obtain a similar trade show license, which would have cost about $4,000 for the COMDEX/Fall show. Interface states that it believed no license *1319 was necessary for the COMDEX/Fall show because Interface itself did not intend to perform any music.

The COMDEX/Fall show was held in October, 1991, in Las Vegas. The show occupied over 2.5 million square feet in seven separate convention centers and hotels. Over 2,000 exhibitors rented space from Interface for exhibition booths from which they could display their wares. Exhibitors were responsible for the content of their booths, but they were required to abide by the general Rules and Regulations established by Interface. Rule 1 of these Rules and Regulations forbids exhibitors from using music at a volume that might intrude upon adjacent exhibit areas, and advises exhibitors that it is their responsibility to obtain proper copyright licenses from ASCAP or other licensing authorities for any music played.

During the five days of the show, about 132,000 persons attended. Two of these attendees were investigators for ASCAP, who overheard copyrighted music of the plaintiffs being performed at five exhibition booths. Specifically, the investigators heard the following copyrighted songs: “Man in the Mirror” and “ABC” (Proton booth), “Three Times a Lady” and “Third Rate Romance” (Televideo booth), “Africa” (LSI booth), “Into the Groove” (Neotec booth) and “Into the Groove” (Darius booth).

The investigators also attended the “Best of COMDEX” awards ceremony, which was co-sponsored by Interface and BYTE magazine, a McGraw-Hill publication. The awards ceremony was held in the Hilton hotel, in a ballroom leased by the Interface group. According to the written agreement between Interface and BYTE, Interface was responsible for promoting the ceremony to the public and press and for supplying “all audio/visual needs” for the ceremony; BYTE was responsible for the content of the ceremony.

The top prizes at the awards ceremony were called “Shellys” in honor of Interface president Sheldon Adelson. Advertising for the event compared “Shellys” to the “Oscars” of the film industry and invited the show attendees to a “Gala Award Ceremony” in the Las Vegas Hilton Showroom.

At the awards ceremony, the ASCAP investigators heard a disc jockey and a band, the “Jazz Barons,” perform the following songs: “The Way You Look Tonight,” “I’ll Take Romance,” “Hey, Look Me Over,” and “Strike Up The Band.” Plaintiffs own the copyright on each of these songs.

No party offered any evidence at trial on how the disc jockey came to be performing at the awards ceremony. The band was obtained by the Públic Relations Manager of BYTE Magazine, Dawn Mathews, through the Las Vegas Hilton Hotel. The requisition form -for the band states that the Hilton “is acting as the agent for the Convention in booking the entertainment services.”

Interface derived its profit from COM-DEX/Fall from three sources: booth rentals at $35.95 per square foot, admission fee charges of $75 per person for attendees, and advertising revenues. Gross revenues from these three sources at COMDEX/Fall exceeded $44 million. Interface did not earn any revenue directly from any business activity generated at exhibitors' booths, or from the Best of Comdex awards.

III. The Prima Facie Case

A. The Legal Background

The federal Copyright Act grants to the owners of copyrights in musical works the exclusive right, with express limitations, to perform or to authorize public performances of the work. 17 U.S.C. § 106(4). Anyone who violates the exclusive rights of the copyright holder is an infringer, for whose acts the copyright holder may seek actual or statutory damages, id. § 504(a), injunctive relief, id. § 502(a), and reimbursement of the costs of suit, including a reasonable attorney’s fee, id. § 505.

The purpose of the Copyright Act is to protect the interests of composers and authors by granting them a limited, legal monopoly over the publication and performance of their artistic works. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429, 104 S.Ct. 774, 782, 78 L.Ed.2d 574 (1984); Herbert v. Shanley Co., 242 U.S. 591, 37 S.Ct. 232, 61 L.Ed. 511 (1917). “It is said that reward to the author or artist *1320 serves to induce release to the public of the products of his creative genius.” United States v. Paramount Pictures Inc., 334 U.S. 131, 158, 68 S.Ct. 915, 929, 92 L.Ed. 1260 (1948). It may also be said that payment to authors or artists is a matter of fairness when others make use of their creations. Cf. Chess Music, Inc. v. Sipe, 442 F.Supp. 1184, 1185 (D.Minn.1977) (“Those who profit from copyrighted music are obliged to pay not only the piper but the author.”)

If a copyright infringement is proved, the copyright holder may ask a court to impose liability for the infringement on third parties rather than on the direct infringer. Although this derivative liability for third parties is not expressly stated in the statute, the Supreme Court has held that “[t]he absence of such express language in the copyright statute does not preclude the imposition of liability” on third parties. Sony, 464 U.S. at 435, 104 S.Ct. at 785. Indeed, courts have long recognized that, in order to protect the copyright holder’s statutory monopoly, parties other than the direct infringer must often be held accountable for copyright infringements. See, e.g., Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1161-62 (2d Cir.1971) (citing cases).

Two forms of third-party liability have been recognized in the case law: vicarious liability, derived from the similar concept in the law of employer-employee relations, and contributory infringement, derived from the tort concept of enterprise liability. See Demetriades v. Kaufmann, 690 F.Supp. 289, 292 (S.D.N.Y.1988) (citing cases and distinguishing between vicarious and contributory infringement). Plaintiffs in this case argue that they have established a prima facie case of copyright infringement, and they seek to hold Interface liable as a third party under theories of both vicarious and contributory liability.

B. Elements of the Prima Facie Case

To establish a prima facie case of copyright infringement, a plaintiff must demonstrate (1) originality and authorship of the work involved; (2) compliance with all formalities required to secure a copyright under the Act; (3) plaintiffs ownership of the copyright in question; (4) public performance of the work; and (5) lack of authorization for the performer to perform the work. 17 U.S.C. §§ 101-106, 501. See also Jobete Music Co., Inc. v. Massey, 788 F.Supp. 262, 265 (M.D.N.C.1992). An earlier requirement that the performance also be for “profit” was eliminated through amendments of the Copyright Act effective January 1, 1978. 17 U.S.C. § 106; see also H.R. 94-1476, reprinted in 17 U.S.C.A. § 106 (West 1977) at 103 (discussing reasons for eliminating profit requirement).

It is undisputed that plaintiffs have established the first four elements of their prima facie case: the parties stipulated that the plaintiffs are the true owners of valid copyrights to ten musical works that were performed by others at the trade show and awards ceremony. And, performance of the works in “any place where a substantial number of persons outside of the normal circle of a family and its social acquaintances is gathered” constitutes public performance of the work, 17 U.S.C. § 101; thus this element of the prima facie ease has been met. The final element, lack of authorization for the alleged infringer to perform the work, creates the only area of dispute.

C. Burdens of Proof and Production

The parties have stipulated that Interface was not authorized to perform the works. The record remains silent, however, on whether one or any of the exhibitors, the Jazz Barons, or the disc jockey, were licensed or had received permission directly from the authors for the performances. Plaintiffs and Interface each contend that the other has the burden of proof on the issue of authorization and that the silent record demonstrates failure to meet that burden. Both arguments are cogent, but of course one must fail.

On the one hand, it is hard to fault defendant’s argument that plaintiffs should not be allowed to impose liability on a third party for vicarious or contributory infringement without proof that an infringement in fact occurred. Some of the case law and treatises *1321 make this point explicitly. For example, the Supreme Court made clear in Sony that the burden of proving a direct infringement rested on the plaintiffs:

To prevail, [plaintiffs] have the burden of proving that users of the Betamax have infringed their copyrights and that Sony should be held responsible for that infringement.

Sony, 464 U.S. at 434, 104 S.Ct. at 785. Other cases are in accord. See, e.g., Danjaq, S.A. v. MGM/UA Communications, Co., 773 F.Supp. 194, 201-02 (C.D.Cal.1991) (contributory infringement does not lie without proof of direct infringement), aff'd 979 F.2d 772 (9th Cir.1992); see also 1 Paul Goldstein, Copyright § 6.1, at 705 (1989) (“It is definitional that, for a defendant to be held contributorily or vicariously liable, a direct infringement must have occurred.”).

This common-sense requirement that liability may not attach unless plaintiff establishes a prima facie case for the infringement comports with basic tort doctrine in cases of third-party liability. The most obvious example, of course, is that employers are not held vicariously liable unless plaintiff can first establish that an employee committed a tort.

On the other hand, district courts in this circuit appear to have handled the burden of proof somewhat differently in copyright cases with facts somewhat similar to this one. The cases are legion in which restaurant and nightclub owners have been held liable for copyright infringements by bands or solo performers without any explicit finding that the performers themselves were unlicensed. The courts in these cases appear to accept the owner's admission of the owner’s lack of license as establishing a prima facie case of copyright infringement, without requiring further evidence of the band’s lack of authorization. See, e.g., Marvin Music Co. v. BHC Ltd. Partnership, 830 F.Supp. 651 (D.Mass.1993) (defendant club owners who concede own lack of authorization held liable for infringement based on live and recorded music); Broadcast Music, Inc. v. Larkin, 672 F.Supp. 531 (D.Me.1987) (defendant owners who admit own lack of authorization held hable for infringements by band); Sailor Music v. Mai Kai of Concord, Inc., 640 F.Supp. 629 (D.N.H.1986) (holding defendant who conceded lack of authorization liable for infringement by band); Cass Cty. Music Co. v. Vineyard Country Golf Club, 605 F.Supp. 1536 (D.Mass.1985) (defendant lounge owner who admitted lack of license held hable for copyright infringement by guitarist); Famous Music Corp. v. Bay State Harness Horse Racing, 423 F.Supp. 341 (D.Mass.1976) (holding manager of race track hable for alleged infringement by musicians without stating evidence that musicians were unlicensed), aff 'd 554 F.2d 1213 (1st Cir.1977).

Did the burden of production implicitly shift to the defendants in these cases on the ground that the owner of an estabhshment is more likely than a copyright holder to have control over itinerant musicians and thus is better able to produce a hcense agreement, if one exists? Or, is it more hkely that the defendant in each of these cases simply did not challenge plaintiffs assertion of copyright infringement by the musicians, and the court simply had no reason to consider this issue?

To be clear, I note that this distinction between the performer’s lack of authorization and the defendant’s lack of authorization is material only in the context of third-party liability cases. In direct liability eases—for instance, those involving jukeboxes and radios—a lounge owner who runs his own establishment can be held directly liable for playing music without authorization because the owner himself is “performing” the music as that term is defined in the Copyright Act. See 17 U.S.C. § 101 (“To perform a work means to ... play ... it, either directly or by means of any device or process.”). Thus in these direct infringement cases, the issue is not whether some other person involved in the recorded performance had an authorization but instead whether the owner of the establishment where that re *1322 cording was played had an authorization. The courts have no reason in eases of this kind to look beyond the owner’s own concession of lack of authorization. See, e.g., Little Mole Music v. Spike Inv., Inc., 720 F.Supp. 751 (W.D.Mo.1989) (managers of jukebox company held directly liable based on own admissions); Rare Blue Music, Inc. v. Guttadauro, 616 F.Supp. 1528 (D.Mass.1985) (lounge owner held directly liable for unauthorized playing of copyrighted songs on jukebox); see also Pedrosillo Music Inc. v. Radio Musical, Inc., 815 F.Supp. 511, 515 (D.P.R.1993) (prima facie case established based on defendant radio station’s admission of lack of authorization); Merrill v. County Stores, Inc., 669 F.Supp. 1164 (D.N.H.1987) (store owner who admitted lack of permission held directly liable for broadcasts of radio music in store).

In eases involving live performances by musicians or disc jockeys, however, the only bases for liability of the nightclub owner are vicarious and contributory liability, because the owner is not performing the work. Only the actual performer—the musician or the disc jockey—is a direct infringer. This distinction was clear in the leading cases on third-party liability, and courts in these early cases were careful to find an actual infringement by the alleged direct infringer. See Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 306 (2d Cir.1963) (department store held vicariously liable for acts of its concessionaire, a “conceded infringer”); Gershwin Publishing Corp. v. Columbia Artists Management Inc., 443 F.2d 1159 (2d Cir.1971) (noting that defendant manager “concedes” that the artists performed the work without the permission of the copyright owner “and that the performing artists ... are therefore liable under the Copyright Act”); see also Chess Music, Inc. v. Sipe, 442 F.Supp. 1184 (D.C.Minn.1977) (after band members testify at trial that they were unaware music was copyrighted, court determines “[t]here is no doubt that the performances in question were performed ... without the permission of the copyright owners”).

Some later cases have failed to explain the basis of liability as carefully, see, e.g., Cass Cty. Music Co. v. Vineyard Country Golf Club, 605 F.Supp. 1536 (D.Mass.1985) (holding third party liable without referring to vicarious or contributory liability and without explicitly finding proof of direct infringement), but other lower court decisions, as well as the Supreme Court statement in Sony, make clear that proof of a direct infringement by the performer is a required element for plaintiffs’ prima facie case of copyright infringement. Cases that may be interpreted as founded on a contrary assumption, in this and other circuits, are not directly on point because in none of them is it stated that the defendant denied that a direct infringement occurred; it is possible that the fact was obvious and never contested. In the case now before the court, however, the defendant has declined to stipulate that any of the performers was unauthorized and now contends that this element is unproved.

I conclude that the plaintiff has the burden of proof on the issue of authorization. It may nevertheless be true, however, that after some kind of showing by a plaintiff, a defendant may bear a burden of production.

I am aware of only one case—and the parties have cited no other—in which the court explicitly considered shifting to the defendant a burden that was at least a burden of production, and perhaps more, after plaintiffs had done nothing other than allege a prima facie case. In that case, Blendingwell Music, Inc. v. Moor-Law, Inc., 612 F.Supp. 474 (D.Del.1985), the court granted summary judgment against a defendant saloon owner based on his vicarious liability for alleged copyright infringements by a country music band at the saloon. There is no evidence in the case that the band was unauthorized to perform the copyrighted works, but the court nevertheless concluded that the plaintiff had done enough to shift the burden to the defendant:

The Court feels that once a lawful proprietor of a copyright alleges that a perfor *1323 manee of a copyrighted work was unauthorized, the burden shifts to the defendants to show a genuine issue of fact exists that the performance was authorized.

Id. at 481.

In the case of copyright infringements by itinerant musicians or other, transient performers, it may very well be that a defendant who hires the musicians is in a better position than the copyright holder to establish whether the musicians are authorized to perform, and that once a plaintiff makes an initial showing of a prima facie case (at least if plaintiff offers an evidentiary showing, perhaps based only on a good faith statement of information and belief), a burden of production should shift to the defendant. I conclude, however, that even if a court adopts a rule of procedural law that shifts to the defendant a burden of production, the plaintiff cannot invoke that rule without at least making a statement, under the pains and penalties of perjury, that the plaintiff believes the performers were unauthorized.

For the foregoing reasons, I conclude that the plaintiffs in this ease have an initial evidentiary burden to come forward with some statement that the performers of the copyrighted works did not have authorization from the copyright holders or their agents. On the record now before the court, the plaintiffs never explicitly contended that the exhibitors, band, or disc jockey were unauthorized. Plaintiffs put forward no evidence of a direct infringement. They did not purport to say that ASCAP had searched for and found no record of licensing any of the five exhibitors, the disc jockey, or the Jazz Barons. They did not say that no plaintiff had personally authorized any of the performances. Even if I were to hold that a settled legal rule, or a newly fashioned rule, shifts the burden to the defendants to come forward with proof of authorization once the plaintiffs make a good faith affirmation that the performers lacked authorization, the plaintiffs have not done enough to invoke the rule in this case.

Because plaintiffs have failed to allege any direct infringement, I conclude that it is immaterial to the outcome of this case whether some kind of showing might be enough to shift a burden of production to the defendants on the issue of authorization.

I note that in an earlier motion for summary judgment in this case, the plaintiffs did allege, in the affidavit of L. Barry Knittel, that the performers were unauthorized:

Interface has failed to obtain authorization for performances of copyrighted music of ASCAP’s members’ copyrighted music at its conventions and trade shows, including the COMDEX/Fall ’91 trade show. I believe also that none of the exhibitors present, nor BYTE magazine, obtained authorization to perform any of the ten songs involved in this case.

Affidavit of Director of Licensing for AS-CAP, L. Barry Knittel, ¶ 40 (Docket No. 22) (emphasis added). This paragraph was deleted from the affidavit of L. Barry Knittel that was entered in evidence at trial. No other affidavit in evidence refers to the lack of authorization for the performers. It is not sufficient for plaintiffs to make the legal argument, as they do in their trial brief, that the songs were “performed without authorization,” when the supporting evidence they cite in the record is only a stipulation that Interface was not authorized and there is no good faith allegation that the performers were unauthorized. (Trial Brief, Docket No. 48, p. 2).

Plaintiffs have chosen a strategy of seeking a ruling based on minimal evidence—a ruling that, if affirmed on appeal, would establish a precedent extraordinarily favorable to ASCAP members. In doing so, they have elected not to press, in the alternative, a more modest claim for a less dramatically favorable precedent. Of course, they will remain free, on another day in another case, to make a more modest claim. The down side of pursuing such an all-or-nothing strategy, however, is that the court may conclude, as I have, that it leaves the court with no supportable choice but to award nothing.

I conclude, then, that although other courts have imposed liability on third parties without an explicit finding of a direct infringement, I cannot properly do so in this case. The record in this case provides no *1324 basis either to assume or to find that a direct infringement occurred. Plaintiffs have the burden of proof, although not necessarily the burden of production at every stage of trial, to establish each element of their prima facie case of copyright infringement. Because plaintiffs have failed at trial to establish the fifth element, the performer’s lack of authorization for the copyrighted performance, defendants are entitled to judgment.

As stated above, however, I will proceed to address the other issues in this case, for all the performances at issue, in order to create a full record that includes all potentially material factual findings.

IV. Vicarious Liability

A. In General

In Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304 (2d Cir.1963), the Second Circuit articulated what has become the acknowledged standard for a finding of vicarious liability in the context of copyright infringement:

When the right and ability to supervise coalesce with an obvious and direct financial interest in the exploitation of copyrighted materials—even in the absence of actual knowledge that the copyright monopoly is being impaired—the purposes of copyright law may be best effectuated by the imposition of liability upon the beneficiary of that exploitation.

Shapiro, Bernstein, 316 F.2d at 307 (internal citations omitted). The court derived these two elements—the right and ability to supervise and an obvious and direct financial interest—from two contrasting lines of precedent under the copyright laws. Under one set of cases, in which landlords were exempted from liability for the copyright infringements of their tenants, the court noted that the landlords received only a fixed rental fee from the tenants, did not know of the tenants’ copyright infringements, did not supervise the tenants, and received no financial benefit from the infringements. Id. (citing cases).

Under the other line of eases, the so-called “dance hall cases,” the owners of nightclubs and similar establishments were held vicariously liable for the infringement of musical copyrights by bands performing at the club. The original basis for vicarious liability was founded on the employer-employee relationship between the club owner and the band, see, e.g., M. Witmark & Sons v. Calloway, 22 F.2d 412, 414 (E.D.Tenn.1927), but as the Shapiro, Bernstein court noted, “courts have not drawn a rigid fine between the strict cases of agency, and those of independent contractor, license, and lease.” 316 F.2d at 307. Indeed, the traditional agency standard of control over “manner and means” of performance appears to be irrelevant in these cases, and liability attaches “whether or not the proprietor has knowledge of the compositions to be played or any control over their selection.” Id. (citing cases).

The court extracted from these cases the principle that, rather than following strict agency or independent contractor doctrines, courts should impose vicarious liability when the facts indicate that the defendant has the “right and ability to supervise” the infringer coupled with “an obvious and direct financial interest in exploitation of the copyrighted materials.” Id. This two-pronged test has been widely adopted, although courts often refer to the two elements by the shorthand terms “control” and “benefit.” See, e.g., Demetnades, 690 F.Supp. at 293 (“benefit and control are the signposts of vicarious liability”).

The court in Shapiro, Bernstein was faced with a question similar to the one before this court: where along the spectrum of fact patterns from nightclub to landlord does the defendant stand? Applying the touchstones of benefit and control to the defendant in that case, a department store owner, the court concluded that the store should be held vicariously liable for the infringing sales made by a record concessionaire that operated on the store’s premises. The court noted that the department store retained “the ultimate right of supervision” over the concessionaire and received a percentage of the profits generated from all sales. 316 F.2d at 308. This evidence of a “strong concern for the financial success” of the concession, coupled with the store’s contractual ability to control the concession, satisfied the court that imposing vicarious liability on the de *1325 partment store would be just, and would best protect the interests of the copyright holder:

[The department store] has the power to police carefully the conduct of its concessionaire, Jalen; our judgment will simply encourage it to do so, thus placing responsibility where it can and should be exercised____ Were we to hold otherwise, we might foresee the prospect—not wholly unreal—of large chain and department stores establishing “dummy” concessions and shielding their own eyes from the possibility of copyright infringement, thus creating a buffer against liability while reaping the proceeds of an infringement.

Id. at 308-09.

Like the court in Shapiro, Bernstein, I conclude that the defendant in this ease, in its relation to the exhibitors, lies closer on the spectrum to the nightclub and department store than to the landlord. Indeed, although Interface’s computer show may not evoke this image, another trade show organizer and its exhibitors might aptly fit the model foreseen by the Second Circuit of a large organization establishing “dummy” concessions that buffer the organization from liability for profitable infringements. Picture, for example, a fashion trade show at which each exhibitor played copyrighted music while its models walked the runway. If the organizer of this hypothetical trade show had contractual control over its exhibitors, arranged the audience for the exhibitors, and derived a profit from the exhibitors through rents, a cover charge, and advertising, it would be well within the precedents to hold the organizer vicariously liable for the copyright infringements of its exhibitors. Interface is in a position not materially different.

Before demonstrating how the elements of benefit and control apply to the facts of this case, I pause briefly to examine, first, the history and the policy justifications behind the legal theory of vicarious liability, second, a description of vicarious liability in the context of copyright infringement that appears in the House Report on the Copyright Act of 1976, and third, questions arising from the development of this view of vicarious liability for copyright infringement.

B. History of and Justification for Vicarious Liability

The Shapiro, Bernstein court’s inclusion of a policy justification for vicarious liability along with its discussion of the two elements of benefit and control reflects the now common recognition in other areas of the law that vicarious liability rests, in part at least, on a policy foundation relating to risk allocation. Even in copyright cases, in which the touchstones of benefit and control have become the defining elements for vicarious liability, we nevertheless are considering “the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the acts of another.” Sony, 464 U.S. at 435, 104 S.Ct. at 785.

The theory of vicarious liability developed from the law of agency, specifically employer-employee relationships, in which the “master” was held strictly liable for the torts of a “servant.” Various legal concepts were fashioned to explain this liability, including the concepts of “control,” “right to control,” and “manner and means of performance.” See Restatement (Second,) of Agency, § 220(2).

Modern decisions, when explaining policy justifications for vicarious liability rather than merely citing precedent, commonly refer to risk allocation. When an individual seeks to profit from an enterprise in which identifiable types of losses are expected to occur, it is ordinarily fair and reasonable to place responsibility for those losses on the person who profits, even if that person makes arrangements for others to perform the acts that foreseeably cause the losses. The law of vicarious liability treats the expected losses as simply another cost of doing business. The enterprise and the person profiting from it are better able than either the innocent injured plaintiff or the person whose act caused the loss to distribute the costs and to shift them to others who have profited from the enterprise. In addition, placing responsibility for the loss on the enterprise has the added benefit of creating a greater incentive for the enterprise to police its operations carefully to avoid unnecessary losses.

*1326 This background of policy justifications for vicarious liability serves to place in context the two elements of benefit and control derived from the previous case law by the court in Shapiro, Bernstein. By focusing on benefit received from and control over an enterprise, a court can evaluate the defendant’s ability to spread losses and police conduct within the enterprise, as well as the underlying fairness of holding the defendant liable.

The distinctive version of vicarious liability that has developed in the context of copyright omits the requirement, common elsewhere in the law of vicarious liability, that the right and ability to control extend to the “manner and means of performance.” This distinctive variation is understandable, however, and is consistent with the policy foundations, as long as the right of control extends fa