In the case of Herbert et al. v. The Shanley Company in 1916, the U.S Supreme Court ruled that public performances of copyrighted music without permission from copyright owners constituted a violation of copyright law, even if those performances were not charged for separately but were part of providing an overall entertainment service to customers who paid an admission fee. The defendant was a restaurant owner who played copyrighted music as part of his establishment's dining experience and argued that he did not charge specifically for these musical performances; therefore, it should be considered outside the scope of copyright infringement. However, the court disagreed with this argument stating that playing such music contributed to attracting more customers which indirectly increased profits thus making it a commercial use subject to copyright laws.

In the dissenting opinion for Herbert et al. v. The Shanley Company, Justice Holmes argued that the performance of a copyrighted musical composition in a restaurant without charge to patrons did not constitute a public performance for profit under copyright law. He reasoned that since customers do not pay specifically to hear music but rather for food and drink, it cannot be said they are paying directly or indirectly for its use. Therefore, he concluded there was no violation of copyright laws as the proprietors were not making direct profits from performances of copyrighted works.