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

by Alex Sayf Cummings

  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).62

  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.63 However, Representative John Gill, Jr. (D-MD) insisted that the purchaser of music acquired “a property right which he can use as he pleases.”64 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.65 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.66 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.67 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.68 Smaller piano roll firms worried that a monopoly would form, and some composers blasted the Aeolian scheme as dirty dealing by the “phonograph trust.”69 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, 1909.70 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.”71

  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.”72 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.”73 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.”74 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.

  Pirate Arias, Bootleg News, and Other Problems from Europe

  While the ink was fresh on the new copyright act, the Eastern District Court of New York handed down one of the first decisions on a clear case of piracy. The case involved a colorful and mysterious character who arguably pioneered piracy and the legal hijinks associated with it: Wynant Van Zant Pearce Bradley. This entrepreneur, whose name soon became familiar to court observers, started out pirating records for Zon-O-Phone. In 1902, he trademarked the terms “Talk-O-Phone” and “Monogram,” and ventured out from his native Brooklyn to enlist investor Albert Irish’s help in starting the Ohio Talking Machine Company. Ohio brought out a line of phonographs that closely imitated the Victor company’s machines. The various models bore the names of (Victor) Herbert, (John Phillip) Sousa and other noted composers, apparently without permission. Even the logo for “Monogram” discs used bold-faced letters for “gram,” likely hoping to link itself to Victor’s “gramophone” in the consumer’s minds. Victor soon filed suit against the company for patent infringement; Albert Irish went bankrupt; and Bradley took to inveighing against the “Victor interests” in the pages of Talking Machine World. By the time Victor won the patent case, Bradley was in hot water again for a disc-pirating operation, Continental Records.75 The Italian label Fonotipia Records sued Bradley for copying arias that it had licensed Columbia Records to produce and sell in the United States. Columbia and Victor joined the suit as plaintiffs, alleging that Bradley also imitated their products, and the Circuit Court of the Eastern District of New York heard the case in 1909.

  Continental was a wisp of an organization. Bradley claimed only to be its salesman, but the court could not dig up any other name in connection with the company. Continental stated its base as New Baltimore, New York, though no office or plant could be found there. When Columbia’s agents purchased some records from Continental, the receipt showed the address of a storage com
pany. Music historians Allan Sutton and Kurt Nauck believe Continental made new masters from commercially available discs, shipped the new molds to “an undisclosed foreign location,” and then exported them back into the United States.76 That the court could find no office or plant for the company suggests that this export-import scheme may have been true. However, Bradley could just as easily have pressed the records at a secret factory or shop in the United States. He might have told the court that the goods were imported in the hope that the product’s ostensibly “foreign” status would deflect copyright concerns. The arias Continental copied were originally recorded in Italy, and a consumer might expect them to be foreign in any case.

  Justice Thomas Chatfield observed that Columbia’s “originals” themselves were copies, in a sense. Using the disc method pioneered by Emile Berliner in 1888, the sound waves of a performance were etched onto a flat disc called the “master” record.77 From this first matrix, Chatfield observed, “numberless reproductions, substantially duplicates even in minute details of the original record” were made.78 Earlier wax cylinder recording required the singer to perform a song over and over again; the cylinders were engraved in small batches, with recorders arrayed around the performer to capture the sounds simultaneously. True mass production was not possible until Berliner invented a master disc from which any number of other discs could be pressed. In a sense, the cylinder recordings were more “original” than the discs sold by Columbia, because the latter were copied en masse from the initial master record. Nonetheless, the court distinguished between Columbia’s “duplicate originals,” which were mass-produced from an original recording of the performance, and Bradley’s copies. “The defendant’s records are not duplicates,” the judge reasoned, “even in the sense that they are removed from the original singing by but one reproduction from a matrix.… The Continental Record Company makes its records from commercial discs of the complainants and must produce a second matrix before the copies can be pressed or stamped.”79 The pirated records were a further step removed from the real thing.

  Justice Chatfield noted that Bradley had not exactly imitated the distinctive red label of Victor’s records, which the company used to distinguish its high-end line of classical music. In fact, the Bradley records did not look much like the originals from which they were copied, meaning that the pirate could not be accused of “palming off” his copies as if they were the originals.80 Continental’s advertising made it clear that the records were duplicates, containing the same sounds but not identical to the originals as material objects. The judge noted, though, that Continental’s claim of equal sound quality was “a question of fact … in which the public is interested.”81 If consumers believed that Continental records were just as good as Victor records, and then discovered that Continental played poorly, they might be reluctant to buy either one in the future. The court found that Continental made its records of less durable material, which was prone to “scratching and irritating sounds.”82

  In a sense, Bradley’s knockoffs resembled the cheap generic versions of contemporary name-brand products, such as cereals or toaster pastries. In the Fonotipia case, however, the court ruled that generic editions of musical recordings could not be sold alongside the original, name-brand product. The performer’s right to his or her creative work did not figure much in the decision—as the judge noted, the musicians had worked under contract for Fonotipia and were not involved in the lawsuit. Instead, Bradley was faulted for his false claim of equal sound quality and for taking advantage of Victor’s reputation.83

  Both the talking machine ads and Bradley’s legal strategy suggest that distinctions between original and copied records had been commonplace in the market until the Fonotipia decision. Russell Hunting and other early recording artists were well aware that unauthorized copies of their recordings circulated on the market. Listeners did not necessarily identify one recorded performance as the exclusive product of one record company, and Bradley sought to exploit this uncertainty for all it was worth. The Supreme Court’s White-Smith decision held that anyone could produce piano rolls of songs, since this use was merely a mechanical application and not a copyrightable expression in itself, but just a year later the Fonotipia ruling declared that disc recordings could be regulated by law, through principles of fairness, consumer protection, and the public interest. “The reproduction of songs by famous singers and artists is both educational and beneficial to the people as a whole,” Chatfield wrote, “and the court cannot but take notice of the fact that music has an educational side, and appeals to substantially everyone, even though they be unconscious of the result.”84 The judge associated a recording with the performer, whom record companies paid to record and cultivated as popular sensations. If the court had ruled otherwise, men like Bradley could have undermined the link between a star performer and the company that had contracted his services, and recorded sound might have served as fodder for any company to exploit.

  It is important to note that Fonotipia did not create a new property right. The phonograph recordings were not eligible for copyright, as White-Smith made clear, and the new Copyright Act itself did nothing to change their legal status. As the Harvard Law Review observed, the case involved “nothing more than the reproduction of an unpatented and uncopyrighted article.”85 The district court’s ruling against Bradley centered on the notion of unfair competition, holding that he had not violated copyright but, rather, had exploited his competitor’s investment in the recordings. The court observed that the Victor Company had built an expensive plant in Camden, New Jersey, and spent a great deal of money on advertising its product. “It may be argued that the imitation would go out of the market and be removed from interference with the original if the product proved unsatisfactory,” Justice Thomas Chatfield said in the ruling, “but it would seem that business reputation and excellence of product are entitled to some protection from imitations which discourage further use.”86 If nothing else, the capital investment in both production and promotion should be immune to unauthorized use. The company’s reputation was a possession of sorts; advertising could create a value in the good that the court was bound to protect.

  Fonotipia covered ground that was revisited in 1918 by a better-known ruling, International News Service v. Associated Press, which recognized a quasi-property right in “hot news.” The International News Service (INS) had paid employees of the Associated Press (AP) to reveal the latest information telegraphed from the war in Europe, which was then published in INS’s newspapers at the same time as AP’s.87 The Court condemned INS for “taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown.”88 The fact that Archduke Franz Ferdinand had been shot, triggering the outbreak of World War I, was not in itself AP property, but its significance to the public was owned by the organization that did what it took to collect the information. Its newsworthiness was value that the company created, capital transmuted into history.

  Copyright law had always protected the specific expression of an idea, but never facts. As a later court observed, “The case presented particular difficulty because of the great public interest in the freest dissemination of the news.”89 However, in INS the Supreme Court found that news organizations could enjoy a limited right to own information itself, turning to a similar argument of unfairness that underlay the Fonotipia ruling. Limiting the circulation of important news might be bad for the public, the judge reasoned, but not having the news at all because the AP’s profit motive was diminished was worse. “Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant’s legitimate business precisely at the point where the profit is to be reaped,” wrote Justice Mahlon Pitney for the five-to-three majority.90

  The “hot news” doctrine offer
ed a limited right that, in some ways, resembles the compulsory license. The music publishing system created by the 1909 Copyright Act empowers the composer of a piece of music to authorize the first recording of the composition; afterwards, anyone is free to record his own version, paying a flat royalty for each copy that is produced. The INS decision allowed news organizations to take advantage of their reportage before anyone else did, much as composers could choose when and if their music would be recorded. Whoever went to the trouble of obtaining the scoop was entitled to benefit from circulating the information for some amount of time, at least so long as the news is “hot.” Both the compulsory license and the INS ruling respect the right of an individual (or, more likely, a firm) to benefit from investing labor and capital into the production of an intangible good, which is then presented as a material thing, like a piano roll or a newspaper.

  Corporations had secured ground for their ownership of news and sound recordings, or at least for some of their qualities. At a time when companies were building large, complex organizations to report wartime news or to manufacture and distribute recordings around the world, these decisions opened a path for businesses to own information outside of copyright law. More important, these decisions meant corporations could own something more abstract: the “hotness” of news, or the bankability of a star performer. Struggles over sound recording and copyright broke out at precisely the moment when nascent media giants like Victor were staking out territory in the public sphere through advertising. Victor, in particular, became known as one of the most aggressive pioneers in the use of modern advertising.91 The reputation of its highbrow Red Seal line of records or its stable of opera stars was expensive to create yet cheap for others to exploit, just like the value of news gathered by the AP in Europe. The legal successes of these companies anticipated later high-stakes conflicts between those who made everything from records and phonebooks to lampshades and video games, and others who would copy them.92