Bruce D. Epperson

But technology changed everything. In 1888, the rights-holders of sheet music sued in Massachusetts to stop the makers of perforated paper rolls for a player piano-like device called an organette from copying their song, “Cradle’s Empty, Baby’s Gone.” The judge in Kennedy v. McTammany ruled that the rolls were not copies, as “they are not made to be addressed to the eye as sheet music, but [rather] they form part of a machine.” In 1901 Tin Pan Alley songwriter/entrepreneur George Rosey was similarly sued by the Joseph W. Stern Music Co. when he churned out 5,000 phonograph cylinders of two of their most popular songs, “Take Back Your Gold” and “Whisper Your Mother’s Name.” Again, the court said Rosey had not violated Stern’s copyrights because his wax cylinders were, like the metal cylinder of a music box, merely part of a machine. “We cannot regard the reproduction, through the agency of the phonograph, as copying or publication,” the court said.

Starting in 1901, the Register of Copyrights had pleaded with Congress to update the Copyright Act, and in 1905 the President added his voice, stating that “Our copyright laws urgently need revision.” Work started in early 1906 and promptly bogged down for the better part of three years. One of the main sticking points was mechanically reproduced music. In spite of the Kennedy v. McTammany and Stern Music v. Rosey decisions, the Register of Copyright had been accepting piano rolls for registration, and by 1906 the Aeolian Co. had registered over 2,000.

As the Copyright Act revisions ground through 1908 and into 1909, composers, music publishers and record makers started working at cross-purposes in a confusing maze of interests. Some composers and music publishers didn’t want records and cylinders considered “copies,” because they wanted the same type of performance royalties from record companies they got from stage productions. Other composers and publishers did want piano rolls and cylinders considered copies so they could fully control them like paper sheet music. Some record companies argued that phonorecords and piano rolls weren’t even “writings,” and thus fell completely outside the scope of the Progress Clause of the Constitution. Others thought this was chasing after a fool’s pot of gold, and that their fellow record executives were taking more of a risk of having their own products pirated than they stood to gain from dodging payments to composers and publishers. Frankly, everyone was biding their time until the Supreme Court decided a case called White-Smith Music Publishing v. Apollo Co., due out in February, 1908.

The case concerned player piano rolls, but the decision clearly covered phonograph cylinders and discs as well. The Court based its reasoning on a recent English case, Boosey v. Whight, also dealing with piano rolls. The English court had defined a music copy as “that which comes so near to the original as to give every person seeing it the idea created by the original.” The U.S. Supreme Court tweaked that to create its own definition: “a copy of a musical composition is ‘a written or printed record of it in intelligible notation.’” Therefore, while “it may be true that in a broad sense a mechanical instrument which reproduces a tune copies it” the court concluded that “this is a strained and artificial meaning [as] these musical tones are not a copy which appeals to the eye.”

Justice Holmes dissented. He argued that music is a “rational collocation of sounds,” and that “on principle anything that mechanically reproduces that collation of sound ought to be held a copy,” although he admitted that given the wording of the then-current Copyright Act, piano rolls and phonograph cylinders probably were not included. His theoretical “extraordinary right” to protect the “rational collocation of sounds,” of a recording was not the same right as an author or music composer received under copyright. “The restriction is confined to the specific form, to the collocation devised.” In other words, Holmes was describing a specific expression protection, or, as it has become known, the “sound recording” protection.

To be continued…