The Push for Reform
R. R. Bowker wrote like a man who had fought many battles and nursed more than a few wounds in the process. As the journalist and editor looked back in 1912 on a life of fighting for the enlargement of copyright, Bowker noted “a recurring sense of the losses which the copyright cause has suffered during the long campaign for copyright reform.”22 He saw his mission as the unenviable one of pushing an obstinate America down the path of world progress. The nation, he felt, must catch up with European powers that had already expanded copyright laws, extending the term of protection to the life of the author plus fifty years. Although the 1909 reforms he earnestly advocated in Congress did improve the terms for rights holders, Bowker still dreamed of the day when America could “enter on even terms the family of nations and become part of the United States of the world.”
Congress had been considering a major revision of copyright law for years, but none of the pamphleteers and boosters were able to push lawmakers to action as effectively as the player piano and the phonograph did. The player piano today may seem like a quaint artifact of a remote American past, yet the piano and the paper rolls that conveyed music to its mechanical teeth forced American artists, jurists, and politicians to rethink the lines between idea, music, and machine. To a greater extent than even the phonograph, the popularity of which would soon consign the piano roll to antique stores and museums, the arguments over this medium defined the way music was recorded and sold in the United States for much of the twentieth century.
Hearings for a new copyright act had begun in 1905, but before any legislation was passed, two court cases pushed Congress toward the speedy resolution of the problems posed by sound recording. What was most pressing about these decisions was the potential conflict between them. In White-Smith v. Apollo (1908), the US Supreme Court held that the “copying” of music in piano roll form was legitimate because the roll was part of a machine and, thus, not copyrightable; whereas in Fonotipia v. Bradley (1909), the Circuit Court for the Eastern District of New York ruled that the unauthorized reproduction of phonograph records amounted to deceptive and unfair conduct. The decisions laid out separate lines of reasoning that would define the complicated legal evolution of recorded sound for years to come.
The debate over copyright and sound recording can be said to have begun on the plantation—or, at least, in some fantasy of the South that germinated in the creative subconscious of late nineteenth-century Americans. On the cover of the sheet music for Adam Geibel’s 1897 hit “Kentucky Babe,” a stereotypical cartoon of an impish African American spies out from below a banner that reads “A Plantation Lullaby.” To the right are the labels “40 cents” and “Copyright for all countries.” In the middle is a picture of a daydreaming young man, identified as “Harry Clinton Sawyer, Chanteur Excentrique.” Musical compositions had been protected under federal copyright law since 1831, and Geibel sold the rights to produce sheet music of his song to the White-Smith Music Publishing Company. Little did Geibel or White-Smith suspect that the right to present this music to the public would also be taken up by another company, Apollo, which created perforated paper rolls for automatic pianos.
White-Smith believed that a piano roll that tamped out the melody of “Kentucky Babe” was as much their property as the sheet music that represented it in treble clefs and quarter notes. If another company could sell their song as a roll without paying them a cent, White-Smith might suffer diminished sales of the original written music. What was the difference between the holes punched in paper that cause a piano to play a particular melody and the musical notation representing a song? The music publisher’s attorney, Livingston Gifford, argued that mechanical reproductions were covered under the Constitution’s protection of an author’s “writings,” which originally referred to books, maps, and charts but had been extended to include photographs and paintings. “‘Musical composition,’ the term of the statute under which this case comes,” he proposed, “is broad enough to include perforated music.”
The Apollo Company, however, insisted that copyright could not apply to a piano roll. The perforated paper was part of a machine, which was only subject to patent. “Things intended for mechanical function—for use in themselves—will not infringe copyright,” Apollo’s lawyers Charles Burton and John O’Connell told the Supreme Court, “and are not copyrightable merely because of incidentally being able to perform some part of the function of things copyrightable.” They also insisted that the judges stick to the wording of the current copyright statute, which did not address any mechanical reproductions of music. Their argument had some grounding in international law. Since the making of music boxes and musical clocks was an important industry for Switzerland, the Berne Convention of 1886 had exempted mechanical devices from copyright law. Popular composer Victor Herbert, however, told the New York Times that a music box was in no way the same as a player piano roll. “No possible harm to the composer could be foreseen,” Herbert charged, “because the reproducing device [the music box] was a permanent, unchangeable part of the instrument and the selections reproduced by the same were limited to but few short pieces.”
During the oral arguments, the courtroom was full of gadgets; music boxes, wax cylinders, and an easel draped with perforated paper were on display. On the cylinder phonograph, a metal stylus etched the pattern of vibrating sound waves; the stylus could retrace the grooves to recreate the sound, and users could shave the pattern off to record a new sound in the wax. Although the flat disc phonograph invented by Emile Berliner in 1888 lacked this re-recording capability, the hard-rubber discs produced louder sound than cylinders, which often required users to listen through rubber tubes and earplugs. Curiously, there is no evidence that disc recordings were present in the courtroom during the trial. In 1908, the cylinder was still at the height of its popularity. The plaintiffs wanted to illustrate to the judges the array of old and new recording technologies. They hoped that a demonstration of the player piano versions of “Little Cotton Dolly” and “Kentucky Babe” would persuade the judges that the sound generated was sufficiently similar to White-Smith’s original written compositions to constitute copyright infringement. “Chief Justice [Melville] Fuller, with a twinkle in his eye, inquired whether or not it was proper that Justice [John] Harlan, who is from Kentucky and is a vigorous youngster of some seventy-four years, should sit in the case,” the Washington Post reported. “None of the justices laughed louder than Justice Harlan.”
The experiment may have amused the Court, but it did not accomplish what White-Smith intended. The justices looked at the various objects before them and concluded that they were fundamentally different from the visual materials covered by copyright. Writing for a unanimous Court, Justice William Day defined a copy as “that which comes so near to the original as to give to every person seeing it the idea created by the original.” Neither the grooves on a wax cylinder nor the holes in a piano roll were intelligible to the human eye, unlike a score, a painting, a photograph, or a novel. They conveyed no meaning, in Day’s words, and thus could not receive copyright protection. Like a computer disk or video game cartridge, the piano roll contained and communicated information in a way no one could understand without the help of a machine, and the Court believed copyright was limited to expressions that were visually accessible.
Though he concurred in the decision, Justice Oliver Wendell Holmes Jr. still felt uneasy with the Court’s interpretation of the statute. For him, copyright applied to any “new collocation of visible or audible points—of lines, colors, sounds, or words.” Any machine that recreated such an assemblage of sound made a copy of it, and if the current law did not permit this expansive view, then he believed Congress ought to change it. Indeed, the Washington Post reported that members of Congress followed the case closely. Copyright reform hearings then being held had commenced three years earlier, but the Patents Committee held off drafting a fresh proposal for copyright reform until the Supreme Court issued its decision. In a way, the Court threw down a gauntlet that pushed Congress to bring the reform process, frequently a long and contentious one, to a close. President Theodore Roosevelt had called for a comprehensive revision of copyright law in 1905, citing the “many articles which, under modern reproductive processes, are entitled to protection.” However, Congress failed to resolve the differences between various copyright interests, only passing the Copyright Act of 1909 after the Supreme Court handed down its provocative decision.
Legal scholars have subsequently described the White-Smith decision that music must be visually perceptible to be copyrighted as “incredible” and “truly shocking,” but the Court felt obligated to rule only on the existing statute, which made no mention of mechanical renditions of music. In fact, leading law journals at the time viewed the ruling as logical and straightforward. Perhaps recognizing the shortcomings of the existing law in regard to new technology, the Court concluded that “considerations of the hardships of those whose published productions are not protected by the copyright properly address themselves to Congress and not to the courts.” The songwriters and their business partners had been pressing their case since 1905, and the White-Smith case lent new urgency to their quest to expand the scope of musical copyright.
Copyright Reform in the Progressive Era
In 1905, Congress went where the copyright holders were. Lawmakers left Washington in March with five copyright bills unresolved, and the Senate Committee on Patents arranged a conference in New York the following May to hear from a variety of interested parties: academics, artists, song publishers, and newspapermen, each representing some part of the city’s diverse media. “It is generally admitted by those most directly concerned that the copyright laws of the United States need revision,” the Librarian of Congress, Herbert Putnam, observed in April 1905. Putnam decided to hold the meeting where those “most directly concerned” could easily offer their views on reforming copyright.
Finding receptive ears at these meetings, representatives from publishing, music, and the visual arts pressed for the idea of divisible copyrights. For example, dramatists wanted separate “show-rights” and “stage-rights” for their works. Most speakers advocated greater punitive damages for infringement and the extension of copyright for “as long a period as possible.” Preferably, copyright would be defined separately for each category of works. Brander Matthews, a Columbia University literature professor, suggested that newspapermen might need a shorter copyright than the author’s-life-plus-fifty-year term that his group, the National Academy of Arts and Letters (NAAL), sought. “The first thing to do is to let each one of the particular specific callings state what it wants,” he said. A musician, after all, might want rights that individually address printing, performance, and recording of his work. “I know that in France you cannot play a tune on a hand organ without the permission of the holder of the musical copyright,” Matthews said, while not explicitly advocating the same law in America.
Music publishers bemoaned the increase in illicit copying that accompanied the decreasing cost of printing. The development of photolithography in the nineteenth century greatly enhanced the efforts of sheet-music copiers. New technology permitted pirates to create nearly identical copies of sheet music without the sloppy mistakes that had plagued earlier imitations. At the New York conference, George W. Furniss of Music Publishers’ Association described the process:
A person with ten or fifteen dollars in his pocket can go down the street and have a popular composition photographed and put into plates and placed on the market in a very short time, and it will cost several hundred dollars to capture a few pirated copies, with no chance of getting any relief from the individuals in that line of business.
In one such case, a competitor sold hymns owned by the Oliver Ditson Company under different names, and Furniss asked Congress to allow copyright owners a greater window of time in which to investigate such pirates before they had to file suit. “It took us a long time to find them,” he added, “because we were not all churchgoers ourselves.” Even when a piece was an outright copy, the excellent quality of reproduction could keep investigators from decisively identifying the song as a knockoff.
In these early hearings, the publishers were concerned with tweaking procedural issues in the copyright law, such as the period of coverage or the time allowed to take legal action against infringers. They did not press for a fundamental change in the scope of copyright. Although the Librarian of Congress mentioned the rising use of technology, the music publishers did not dwell on the question of sound recording or mechanical reproduction. “There is a suit on now that has already cost twenty thousand dollars against the mechanical instrument men, who have taken our tools without any consideration at all,” Furniss remarked. “We believe, however, that we shall succeed in that. We believe that the present law will be sufficient to protect us.” If anything, in 1905 they were more perturbed by the ease of copying sheet music that cheaper printing technology had allowed.
The copyright forces found a less congenial atmosphere at hearings in Washington the following year. By 1906, the music industry worried about mechanical reproduction more than before. Confusion surrounded the status of sound recordings in the existing law, and few were sure of the status of written music in the new legislation. Representative Frank Currier (R-NH), chair of the House Committee on Patents, quizzed composer Victor Herbert about whether the talking machine companies enjoyed protection for the records they make. “I think they do,” Herbert averred. If one company started copying another’s records, he said, “they would go for them,” but Currier was not convinced. The two went on for several minutes, Herbert saying the piano roll and phonograph companies had legal protection and the congressman saying he was pretty sure they did not. In any event, Herbert said, sheet music was definitely not shielded from unauthorized reproduction. “Since the courts have held that the perforated roll is not an imitation of the sheet music,” he lamented, alluding to the White-Smith case, “we have absolutely no ground to stand on.”
Meanwhile, the talking machine companies seized on the conceptual muddle of copyright law to push their own interpretation of property rights. If the music publishers, who represented most composers, were going to get rights to mechanical versions of their music, then the makers of piano rolls and phonographs should receive a copyright for their unique reproductions. Horace Pettit, speaking for the Victor company, suggested that Congress insert the term “talking machines” into the list of categories of goods covered by copyright. The proposed law made no mention of mechanical reproductions as a distinct type of copyrightable expression, even though the drafters were otherwise specific in listing books, photographs, and dramatic works as eligible. According to Pettit, the phonograph recording of a specific performance by a great singer was a unique artistic work worthy of the protection of the federal government. “The particular characteristic utterances of a singer, or recitationist, or of an actor, or of an orator, or the particular instrumentation of a pianist, or leader of an orchestra,” he said, “independent of the composition itself… should be equally entitled to protection, as a photograph or reproduction of a work of art.”
The committee offered ready, if not fierce, questioning. If a scholar gives a lecture in one place and Victor records it, Rep. Robert Bonynge (R-CO) asked, would Victor then own the lecture and be able to prevent the man from giving it again, or, perhaps, making another recording of it? Pettit insisted that the copyright for the abstract content would remain separate from the distinctive material expression of it—that is, the words or ideas of the lecture, as opposed to the actual vibrations engraved on a cylinder or disc—but this notion was difficult for many to understand in 1906. The words of a story and its particular appearance as a printed novel itself could not be severed in American law, which had always protected the tangible expression of an idea and not the idea itself. Sheet music and the phonograph presented a situation in which the same germ of creativity was represented in two distinct ways.
Pettit struggled to analogize the phonograph—“a writing upon a record tablet… not to be read visually, but audibly to be read through the medium of a vibrating pencil”—to traditional “writings” like books or photographs. His challenge was to portray the phonograph as similar to the kinds of works already protected by copyright, yet sufficiently different from a written composition to merit a separate copyright. “It is a picture of the voice, as perfectly as a photograph is a picture of a man, or of a thing,” he said, “and all the personality and all the characteristics of speech of the man uttering it are there recorded.” Did he mean to suggest that the picture was exactly the same as what it represented? Was the “picture of the voice” identical to the written words and tones articulated by the voice, or a distinctive work in its own right?
In this regard, what Congressman Bonynge first thought of the content of the recording—a lecture—is key. Thomas Edison initially imagined the phonograph as an office dictation device, with domestic applications such as recording a baby’s first words or the voice of a grandparent for posterity. He did not anticipate that the medium would be dominated by the sale of prerecorded material, whether musical or literary in nature. In this still-early phase of sound recording, the devices were known as talking machines, not “singing machines,” and the notion that one performance of a lecture would be so different from another as to be exclusively used by one company did not seem self-evident. Like Pettit, Bonynge grappled for the right words: “Do you mean that if the lecturer delivers the lecture to one of the talking machines that you should take a copyright upon that disk, or whatever it is, that record, I suppose is what you call it?” What set one version of the lecture apart from the other? If the talking machine company owned the copyright for a recording of those words, how could the lecturer be free to make another record of the text for another company?
Whatever the artistic merits of the individual recording, the talking machine companies were quick to point out its financial significance. Even if a singer’s performance was not recognized as a separate work of art, the company paid him, and him specifically, a tidy sum to record it. “We might pay Mr. Herbert or Mr. Sousa or Mr. Caruso, or any of the opera singers, a thousand dollars for making a record,” Pettit said. As the bandleader and composer John Philip Sousa, who was no fan of the talking machines, noted, “They [the talking machine companies] get much more out of the human voice… They pay Caruso $3,000 to make a record in their machines, because they get the human voice. And they pay a cornet player $4 to blow one of his blasts into it.”
Figure1.4 Like so many of its competitors, the
Excelsior Phonograph Company wanted
consumers to know that each of its records was
original and individually “made to order,”
offering the distinctive performances of
particular performers as well as more generic fare,
such as “piccolo,” “banjo,” or “Vocal Quartettes.”
Source: Phonoscope 1, no. 16 (November–December 1897): 16.
The public did not want just any human voice, though. They would pay good money to hear world-famous tenor Enrico Caruso sing an aria, and, with the rise of jazz, Victor might soon offer more than $4 for a particular cornet player’s “blast.” The Congressional hearings came at a time when phonograph companies began to experiment heavily with advertising, cultivating the celebrity of recording artists like never before. The images of stars like Caruso, Emma Calvé, and Pol-Henri Plançon gave the phonograph a mystique of highbrow sophistication that Victor was willing to spend large sums to create. Pettit suggested that the talking machine companies should receive copyright protection for their recordings because it took a sizable investment to create the product the public most wanted. Why should another company be able to exploit the commercial advantage that Victor had created by hiring Caruso? “It is perfectly possible, within the known arts, for that record, after we have made it, to be reproduced by a mere copperplating process by somebody else and copied,” he said, “so that we would pay the thousand dollars or so and have no protection against the party manufacturing a duplicate of it.” In other words, money talks. Even Sousa agreed on the general point when Representative William Campbell (R-OH) asked if he was seeking greater incentives to write music. “Oh, yes,” the bandleader said. “I can compose better if I get a thousand dollars than I can for six hundred.” The congressmen guffawed at Sousa’s frankness. “That is the real reason,” Campbell concluded.
The exchange did not merely reflect Sousa’s pecuniary instincts. Rather, American copyright had always centered on commercial incentives. Lawmakers traditionally premised copyright on the principle of giving just enough protection to encourage artists to bring their creative works to the market. The Constitution aimed “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” A composer’s song did not belong to its creator forever. Rather, legislators aimed to provide a window of time in which a creator could reap sufficient benefit from the work to be motivated to create it in the first place. When the Connecticut Assembly granted the first copyright during the Revolutionary War, the protection lasted only five years. Congress did not even include music in copyright law until 1831, a limitation that reflects the law’s modest ambitions.
The congressmen who wrote the Copyright Act of 1909 continued to be skeptical of efforts to make copyright a more permanent property right, emphasizing instead the importance of preserving the public’s access to creative work. When R. R. Bowker and his allies in the professional associations pushed hard for a copyright term of the author’s life plus fifty years, Congress did not listen. As Congressman William Sulzer (D-NY) quipped, Russia provides such a term for copyright because there the artist “does not get to live very long.” Legislators decided to keep a term of twenty-eight years, after which an author could renew for another twenty-eight years. If no one expressed interest in renewal, then the work would revert to the public domain, and anyone could make use of it.
If the object of American copyright had been to give artists a reason to invest their labor in creative work, Pettit and other lobbyists focused instead on the financial incentives of big business. Sound recording raised the question of how copyright should work when the creator in question is not a solitary novelist or songwriter, but a capital-intensive corporation using costly technology and marshalling the efforts of many contributors to make a final product. The earlier hearings in 1905 had posed the question from a different angle, when lawmakers discussed the status of composite works like encyclopedias. The committee groped for a term that could describe the legitimate owner of the copyright for such a product. The term “proprietor” had been used in the law, but the Register of Copyrights, Thorvald Solberg, observed that the courts had defined a “proprietor” as an “assignee of the author,” not as a corporate author per se. One committee member noted that many scientific works were being written collectively, and another raised the example of forewords written by several professors for a series of books. “The promoter, the projector, the man who has gotten it up is Professor Gayley,” Brander Matthews of the NAAL observed, “but the person who is supplying the money is another; there is a double case—can the editor take out the copyright or is the publisher to do it?” Matthews hit closest to the target, opening the question of whether a company that manages the allocation of labor and capital, creating nothing itself, ought to be the holder of a copyright.
In 1909 as in 1905, Congress dodged the issue. Sound recording was a fresh and unfamiliar medium, and the politicians chose not to prolong an already complicated process of copyright revision, which affected so many interest groups. It appeared altogether too difficult to assign some kind of copyright to specific renditions of music represented on rolls of paper or in phonograph grooves, since the appropriate “author” was so hard to identify.
One author was already on hand—the composer—and the Copyright Act protected a composer’s right to benefit from reproductions of a musical work while allowing the talking machine companies a degree of latitude to reproduce a performance of that work. The phonograph and piano roll firms did not obtain copyright protection for their products, but they did receive a unique license (literally) to exploit the work of songwriters. The compulsory license system treated music differently from any other category of copyrighted material; it allowed companies to record and manufacture versions of the original article by paying a flat rate per copy produced. Under the system, when George Gershwin wrote “When You Want ‘Em, You Can’t Get ‘Em (When You’ve Got ‘Em, You Don’t Want ‘Em)” in 1916, he was able to choose how the song was first recorded. After the initial recording was released, though, any other company could hire Frank Sinatra or Billie Holiday to record renditions of the song, as long as it paid two cents per copy to Gershwin (or his publishing company).
Congress also favored limiting copyright on the basis of property rights, however counterintuitive that notion may sound to twenty-first century ears. Copyright was not just an author’s property; it was also a kind of monopoly. For twenty-eight years, at least, the copyright holder had absolute control over how a book, photograph, or play would be reproduced. However, this power could be pernicious if it limited the way a consumer made use of property once purchased. For instance, at the 1906 hearings, music publishers had sought to bar the renting and sharing of sheet music on the grounds that the copyright owner retained the right of performance. They suggested that only the purchaser of a song received the right to perform the song, as a sort of license. If a church choir wanted to perform a cantata, it would have to buy one copy of the music for each of its singers. When Congressman John C. Chaney (R-IN) asked if the publishers’ position was that “the property itself does not carry the right to use it,” an industry representative agreed enthusiastically. However, Representative John Gill, Jr. (D-MD) insisted that the purchaser of music acquired “a property right which he can use as he pleases.” Gill compared the composer to a patentee, who can control the reproduction of his product but not its use. If a man buys a tractor, he can freely loan it to his neighbor without seeking the tractor company’s permission. In Gill’s view, limiting the way the same man could use a song he purchased would be an unwarranted invasion of his property rights.
Congress also had other more specific anxieties about monopoly on its mind. Aeolian, a piano roll company, had bankrolled White-Smith’s case against Apollo, hoping to test the judicial waters before making too great an investment in machinery, inventory, and contracts for rights to music. The manufacturer struck a deal with numerous publishers granting it exclusive permission to record the publishers’ songs if the composers prevailed in the case. The Supreme Court, of course, ruled against the copyright holders. However, if Congress allowed composers and publishers to negotiate exclusive licenses with mechanical reproducers, then Aeolian would have had a shot at cornering the industry.
The company’s scheme discomfited congressional observers, who feared “an absolute unqualified monopoly” would fall into Aeolian’s hands. The copyright reform bill evolved during the presidency of Theodore Roosevelt, when politicians embraced the cause of battling trusts of all kinds; music seemed no different than oil or ice in this regard. Indeed, the notorious Keith organization was busy consolidating control over the nation’s vaudeville industry, and the talking machine business looked ripe for a takeover. Smaller piano roll firms worried that a monopoly would form, and some composers blasted the Aeolian scheme as dirty dealing by the “phonograph trust.” The compulsory license provided a clever resolution of these concerns, as it gave the composer a degree of control over his composition and a source of revenue, while also preventing a recording company from controlling how any particular song was recorded.
When Congress considered copyright reform in the Progressive Era, the balance of power still teetered between those who wanted to strengthen the rights of copyright owners and those who sought to defend free access to the arts. The new copyright reform, with its compromise between composers and recording companies, won unanimous approval from the House and Senate Committees on Patent, and the bill sailed through both chambers, winning final approval in the Senate on March 3, 1909. The legislation was the result of long, careful negotiation and had the support of Republicans and Democrats. Shortly before passage, Senator Albert Kittredge (R-SD) assured his colleagues, “This subject has been before the Patent Committee for four or five years, and the committee has expended a great amount of time and has worked hard in order to secure an agreement.”
If anything, the political leaders of 1909 chose to err on the side of caution. When the committee proposed letting churches and schools perform copyrighted music without seeking permission, the publishers’ lawyer, A. R. Serven, commented that “enforced charity, whether by statute or by violence, is vicious and ought never to be resorted to.” The committee chairman retorted, “[Copyright] is, by the way, direct charity, because… your rights are purely statutory.” In other words, copyright was a privilege granted by the government, not a moral right possessed by creators. Many of the testifiers disagreed, viewing the creative artist or rights owner as the greatest priority for the law. As the painter John LaFarge told Congress, “The originator of a thing should not be put to proving his case against the outside world, but the outside world should prove their case against him.” At the very outset of the revision, Librarian of Congress Herbert Putnam observed, “The district attorney has remarked that our statutory laws ought to be in two parts, the first, of laws to be followed, and the second of ‘moral yearnings.’ In our proposals for copyright we had, I think, better leave the moral yearnings to a later generation or at least a later session of Congress.” The quip came true. Later generations and later Congresses would expand the scope of copyright to suit greater moral aims, but, in the meantime, the “copyright forces” got less than they asked for.