The 1909 U.S. Copyright Act limited the public performance right for musical compositions to those for profit. The term "for profit" wasn't defined, so courts stepped into the breach. The most famous opinion on point is Justice Holmes' in Herbert v. Shanley, 242 U.S. 591, 595 (1917), an early test case brought by ASCAP, to establish that a hotel which employed musicians to play for the public while they dined, was engaged in a public performance. The Court held it was, Holmes remarking: "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 for employing it is profit and that is enough."
I have thought of this eminenty quotable remark every time I go to the Caribbean and am sitting on a beautiful, quiet beach, only to be disturbed by a musician or two, hired by the hotel. The music is always horrific, like an electric piano version of Eleanor Rigby. Once, in Barbados, I begged the musicians to at least keep the volume down. They declined. I asked them how much it would cost for them not to play. In a line straight out of the Marx Brothers' movie "Animal Crackers," they said I couldn't afford that. This last week, in St. Maartens, it happened again: stunning beach, very quiet, and then the musicians came. This time I didn't even ask, but one has to question the accuracy of Holmes' statement: hotels can simply make mistakes: I imagine that if a poll was taken of customers, overwhelmingly, people would vote for no music. I would gladly pay a surcharge for musicians not to play, reversing Holmes' confident belief that the performance is of value: it is the non-performance that is more valuable. Silence is golden after all.