Bruce D. Epperson

Starting with the Copyright Act of 1831, one could copyright a musical composition—but only as sheet music. This created a gap between patent and copyright law. Patent law protected a new and unique mechanical device such as a phonograph, but didn’t address the songs it played. Copyright law, on the other hand, may have protected the composer’s rights to the written scores of the songs the phonograph played, but it didn’t cover its mechanical parts. Some argued that the cylinder the phonograph played was a mechanical part; others, that it was a copy of the sheet music; still others, that it was a performance of the composition, just like a stage play was a performance of the written script.

The 1831 Act also required that sheet music, like books and play scripts, be published and distributed to the general public as precondition to copyright. This requirement was called investiture. Until published, any work was the exclusive property of its author under the common law. “In that state,” a judge explained in 1872 in PaImer v. DeWitt, “the manuscript is, in every sense, his peculiar property, and no man can take it from him without being guilty of a violation of his property.” This was based on old English law. One could not, by definition, commit sedition, blasphemy or libel unless the offensive writing was published, so the power to refuse publication—to keep one’s written thoughts private—was a powerful civil right of self-protection. In 1834, in Wheaton v. Peters, the Supreme Court determined that this pre-publication common-law copyright was a creature of the states, because “It is clear that there can be no common-law of the United States.”

If a composer invested his or her score and followed all the necessary copyrighting formalities, it became federally protected, with the specifics spelled out in the Copyright Act. But if the score was published without securing federal copyright, it was released into the public domain. This was known as divestiture. Stage plays presented an early problem. In developing a new play, playwrights frequently started from rough notes, then drilled the actors verbally on their lines. Depending on what went over with the audience, they changed the text before deciding on the final version, which was then printed up and sold like sheet music. Rivals sat in the audience and copied the play from memory. When sued, they claimed that performance published it, resulting in divestiture. The courts were of two minds. Some said performance amounted to a “limited publication,” and while rivals could stage their own performances, they could not produce printed copies. Other courts said performance was flatly not publication, and copying it for either the stage or print was an infringement.

The idea of “limited publication” was advocated by the Massachusetts courts. Its supreme court held in 1860 in Keene v. Kimball that it was legal to use actors to memorize the parts of a rival’s and stage a competing production so long as the second-comer did not try to produce printed copies. After Keene the cases slowly evolved away from this “limited publication” theory until, in a 1912 case, Ferris v. Frohman, the Supreme Court finally put the matter to rest by deciding that presentation did not amount to publication, general or limited.

The issue of “listen and copy” in regards to instrumental music didn’t crop up very often, although the Keene v. Kimball court did take pains to include musical performances within its opinion, so presumably that theory died too in 1912 along with its analog for stage plays in Ferris v. Frohman.

To be continued…