Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century

by Alex Sayf Cummings

  For Griffin Hall, a talking machine would be a machine that mimicked a human being, but the boy in his play merely imitated such a machine. The professor assumed that a machine that could reproduce the sound of human communication, and even interact intelligently with humans, would evoke wonder and fear in others. His talking machine was an agent of deception, a recurrent theme throughout discussions of sound reproduction.

  In fact, the early history of the talking machine was full of imitators, copycats, and frauds who reproduced the recordings of others for sale on the disorderly market of the late nineteenth century. The disarray in the industry resulted in part from uncertainty about which recording format would prevail and what uses would be made of multiple new technologies. Would consumers buy a wax cylinder machine to make recordings in their homes and offices, as Thomas Edison predicted? Would they purchase records to listen to stories or music? Like the boy in the box, the sounds inscribed on early phonographs simply provided the aural content for a physical object, engraved on the surface of a wax cylinder only to be wiped away and replaced by the traces of other sounds. What the talking machine said mattered less than that it spoke and, perhaps, how well it spoke. Record manufacturers tended to emphasize the technical quality of their mechanical reproductions rather than the musical or literary performances contained in them. The bawdy stories, tinny songs, speeches, and jokes were often brazenly appropriated by competitors as the market for recorded music gradually took shape, and phonograph companies—largely consumed by patent battles involving the technology of recording itself—devoted little attention to asserting rights to the performances contained on their products.4 A few firms did move to protect the value of the performances they recorded and sold in the first decade of the twentieth century; Emile Berliner, for instance, sued New York’s Standard Talking Machine Company for violating his patents in 1898 and subsequently sought an injunction when several of the company’s leaders went on to copy Victor recordings through the American Talking Machine Company in 1904.5

  The Bogus Talking Machine is also a reminder that, in the earliest days of recording, the “talking machine” was just that—a vehicle for human speech. Edison initially conceived of his invention as a tool for capturing ordinary voices as much as singers or musicians; the original impetus for the phonograph had been his desire to record messages sent over the telephone.6 The early avatars for sound recording were characters associated with speech. The most iconic, the little white dog named Nipper, has defined the Victor image up to the present day. Nipper also bequeathed to the world “His Master’s Voice,” a slogan that became synonymous with Victor—even though the phrase has been completely severed from its original context. The image was based on a painting by the brother of Victor pioneer Eldridge Johnson, in which Nipper listens to a wax cylinder recording of his owner’s voice. The dog looks rapt and attentive, as if his master were standing right there. The cylinder, of course, could be recorded on and could indeed have contained a reminder made by the pet’s owner. When Victor adopted the image of the dog, the cylinder was replaced with a disc phonograph, a medium that did not allow consumers to make their own recordings. Unless the dog belonged to a recording artist like Enrico Caruso, it was unlikely to feature the actual voice of his master.7

  Soon after, the Ohio Talking Machine Company not only copied Victor’s phonograph patents but also used a wry variation on the company’s trademark image. The outfit at first placed a shaggy dog next to its phonograph, above the slogan “Familiar Voices.” In 1904 the company’s Talk-O-Phone brand swapped the dog for a parrot, an animal better known for talking than singing, and Ohio soon dropped the “Familiar Voices” slogan in favor of “Learning a Few New Ones.”8 Another pirate, Zon-O-Phone, used the slogan “On Speaking Terms,” and pictured a child leaning into a phonograph much like the attentive Nipper.9 Like “His Master’s Voice,” the slogan implied an interpersonal relationship with a machine that did what no other could—talk.

  Americans of the turn of the century broadly associated sound recording with communication, rather than with music or entertainment alone. Promoters of cylinders and discs emphasized the accuracy of their devices in replicating human expression, and they pointed to the “original” quality of a recording as proof of its precision and truthfulness. Like the Victor player, the machines would capture the essence of a person; after all, the recording had to be excellent for Nipper to mistake it for his master. The Norcross Phonograph Company of New York did not trumpet the aesthetic quality of the performances on its recordings, but rather blared “GREAT VOLUME, PERFECT REPRODUCTION, AND FINE QUALITY OF TONE” across the top of its ads in 1897.10 The comedian Russell Hunting also advertised his records as “loud, clear and distinct” the year before. The ad pointed out that the “Standard Humorous Talking Records” were distributed to “all parts of the English speaking world”—a crucial fact, since many of the recordings consisted of stories about the antics of two greenhorns, Hiram and Casey. (In one episode, Casey tries to auction “a pug dog, a pair of gentleman’s pants and photograph picture of Napoleon Boneypart.”) A spoken story is much less likely than music to be appreciated among people of different tongues around the world.11

  Figure 1.1 Phonograph maker Roger Harding’s guarantee of quality suggested that a copy was unacceptable even if it was “just as good,” implying that other dealers were careless and maintained less exacting standards. Source: Phonoscope 1, no. 10 (August–September 1897): 3.

  Companies emphasized that their recordings were loud and clear because they were “original,” as opposed to the inferior records that unscrupulous competitors made by copying the sounds inscribed on other firms’ cylinders and discs. In 1897 John Monroe of Portland, Oregon, assured readers of The Phonoscope: A Monthly Journal Devoted to Scientific and Amusement Inventions Appertaining to Sound & Sight that his records were all “‘original,’ ‘no duplicates,’ made one at a time, every word guaranteed to be clear and distinct, and we are the only parties now making them.”12 Monroe specified “one at a time” because, at the time, wax cylinders could only be recorded individually; an artist would sing or speak into several engraving machines at once to make multiple “copies” of a performance, and the resulting record itself was difficult to copy. Russell Hunting, for instance, was paid a dollar per minute for his services in front of the cylinder’s horn on at least one occasion.13 J. W. Meyer of New York’s Globe Phonograph also announced that his records were original in 1896. “I am making my own records, and can guarantee each one first-class in every respect, loud, and each word distinct,” the singer said, “and also without that disagreeable noise found in duplicate records.”14

  Figure 1.2 John Monroe assures readers of The Phonoscope: A Monthly Journal Devoted to Scientific and Amusement Inventions Appertaining to Sound & Sight that he personally makes his own records “one at a time,” unlike other unscrupulous dealers who copy other people’s records and pass off inferior copies as originals. Source: Phonoscope 1, no. 10 (October 1897): 2.

  In the hurly burly of the early record industry, virtually nothing was sacred. Copyright laws did not address how the music on cylinders and discs ought to be regulated. Congress did pass a bill in 1897 to give composers the right to control performances of their work, so that music venues, for instance, had to remunerate songwriters. The new law, though, proved difficult to enforce and only applied to live human performances—the scratchy sounds that issued from wax cylinders in homes and public phonograph parlors did not count as public performances.15 Thus, early entrepreneurs in sound recording were free to run riot with other people’s work, recording performances of songs without paying composers, copying recordings by other companies and artists, and even sticking the names of well-known artists on recordings by unknowns.

  Numerous artists took to the press to protest that their names and likenesses were being used to sell recordings they had not made. In one poignant example, the bandleader John B. Holding complained that a company was se
lling recordings under the name of his outfit, the Gilmore and Holding Band, even though they only recorded for the Columbia Phonograph Company. “The authority to use the name of Gilmore and his men for phonograph record-making work was granted to me by Mr. Gilmore some time before his death,” Holding wrote in 1897. “The Band to-day is composed of the same musicians who worked so long under the direction of this famous master. Is there no redress for such a fraud?”16

  Holding was not the only artist decrying the unauthorized use of his identity. Hunting also highlighted the veracity of his records because “certain unprincipled individuals and corporations are duplicating my work, thereby deceiving the public by furnishing a record about one-third as loud as the original.”17 Hunting’s emphasis on volume strikes the contemporary reader as odd. He complained that piracy was bad, not because his competitors took advantage of the imaginative element of his story or the skill that went into performing and recording it, but because the unauthorized copy failed to be as loud as the original, damaging the reputation of the Casey records and defrauding the consumer. For Hunting, the technical quality of the device mattered more than its creative content.

  Figure 1.3 Comedian, recording artist, and entrepreneur Russell Hunting advertises in the first issue of The Phonoscope, decrying imitators who tried to dupe consumers into buying recordings not actually made by Hunting. Source: Phonoscope 1, no. 1 (November 1896): 17.

  Russell Hunting had reason to be concerned about unwarranted duplication. At one point, a man going by the name of Frank N. Hunting advertised and sold recordings of his monologues, implying that the two were related. Like Holding and others, Russell Hunting turned to the press to warn the public about the knockoffs.18 In another incident, Russell Hunting had agreed to record his popular storytelling routine, “Cohen at the Telephone,” for the Leeds and Caitlin recording company in the 1890s. He signed on to record “Cohen” ten times, at a rate of $5 for each performance. He sang into four different phonograph horns, which would inscribe his sounds on four different cylinders. However, in the middle of his fourth round, Hunting noticed that an office boy was carrying twenty-five cylinders of his performance through the studio.19 He suspected that Leeds and Caitlin were making additional copies of his performance without paying him, apparently by producing inferior second-generation copies from the cylinders he originally recorded. When he threatened to out the company’s misdeeds to the press, Leeds relented and paid him for the additional copies.20 Thus, although a first-generation recording might be a “copy” of a live performance, it was still more original than the copy of the copy, which Hunting considered to be an inferior imitation. The purported purpose of the talking machine might have been to imitate real people, but men like Russell Hunting sought to distinguish themselves from those who copied the imitators. “A poor article is never imitated,” Hunting asserted. “GOOD ONES ALWAYS ARE. Imitation is the highest flattery.”21

  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.”23

  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.24

  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.”25

  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.”26

  During the oral arguments, the courtroom was full of gadgets; music boxes, wax cylinders, and an easel draped with perforated paper were on display.27 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.28 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.29 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.30 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.”31