Bruce D. Epperson

While Judge Chatfield may have used a modernized version of the established tort of unfair competition to stop Continental’s record piracy, he was far from smug in his handiwork:

Since the beginning of the present action, the copyright law has been amended, and since the first day of June, 1909, any form of recording or transcribing a musical composition, or rendition of such composition, has been capable of such registration, and the property rights therein secured. It would seem therefore that the questions raised in the present case may be avoided as to future compositions by copyrighting the original rendition of the song . . [but] serious discussion may arise over the right obtained, for instance, by a grand opera singer who files a copyright for resigning of a song already recorded by him or her, and sold to the public upon a disc record.

In other words, the singer’s rights to the sound recording. (It should be noted that Judge Chatfield apparently had the mistaken belief that a composer could register his or her composition by sending a copy of the record to the Copyright Office. In 1909, this was an unresolved question. The answer proved to be “no, at least until 1972.)

The earliest case to be tried wholly under the new Copyright Act was Aeolian Co. v. Royal Music Co. (1912) Aeolian had licensed a song from a music publisher to make piano rolls. Royal then entered into a license with the same publisher for the same song, also to make piano rolls, but instead of independently arranging their own tune, they simply copied Aeolian’s perforation matrix. Royal claimed that by securing a composition license from the music publisher, they had done everything the law required. The court held that Aeolian was protected by their licensed use of the copyrighted composition. Royal could not avail themselves “of the skill and labor of the original manufacturer of the perforated roll or record [Aeolian] by copying or duplicating the same, but must resort to the copyrighted composition or sheet music, and not pirate the work of a competitor.”

Aeolian v. Royal was sort of a legal half-way house: yes, a specific sound recording was protected, but it was only through the power the Copyright Act gave to composers to control the use of their sheet music, not to the performer on the recording. Here, Aeolian could sue Royal only with the acquiescence of the unnamed music publisher who owned the composition; in fact Royal had maintained that the suit could not be continued because the publisher was not an “aggrieved” party, that is, had not been harmed. The court determined that Aeolian’s license agreement gave them standing to sue.

More complex and far-reaching were the NAPA cases. The National Association of Performing Artists (NAPA), which existed between 1935 and World War II, was largely the brainchild of bandleader Fred Waring. The leader of a Whiteman-style dance band, the Pennsylvanians, Waring was also a masterful businessman and entrepreneur. In 1936, he was approached by the inventor of a patented, but as-yet unworkable, appliance for making fruit juices called a “blender.” Waring invested in the idea, made a few technical changes, and contracted with a firm in Toledo to make the “Waring Mixer.” It made him a fortune. He was also getting paid $13,500 a week by Ford to play a two-hour-a-week radio show—in the middle of the Great Depression.

ASCAP collected fees for stage (and later, radio) performances for a select group of composers starting in 1914, and was joined by the more inclusive SESAC in 1930 and BMI in 1939. (The Harry Fox Agency collected the two-cent royalties owed to composers for records and cylinders under the 1909 Copyright Act.) However, these were fees paid to composers, not to the performers, who had no statutory rights in their sound recordings. It was the purpose of NAPA to press for performers’ rights in recorded music.

To be continued…