Bruce D. Epperson

In 1935, Waring had sent a copy of a recording of “Lullaby of Broadway” to the Register of Copyright, seeking to apply for the rights to the “personal interpretation” of the song. The copyright office rejected the application, writing Waring that “there is not and never has been any provision in the [Copyright] Act for the protection of an artist’s personal interpretation or rendition of a musical work.” The next battle was to go after the radio stations that Waring, Paul Whiteman, Guy Lombardo, and  the other NAPA members believed were forcing them, in Waring’s words, “to compete against ourselves for free every night.”

Waring’s contract with Victor, stated that the label of each record was to carry the notation “Not licensed for radio broadcast.” Radio station WDAS, a Philadelphia station, purchased a Waring record and broadcast it, paying the required ASCAP fee. Waring sought an injunction under Pennsylvania state law to block the further broadcast of his records, asserting that he had “property rights in their [the band’s] artistic interpretation” that was independent of the composition, and thus not covered by the ASCAP system. “Does the performer’s interpretation of a musical composition constitute a product of such novel and artistic creation as to invest him with a property right therein?” asked the court.

The answer was “yes.” The court said that a musical composition is, by itself, an incomplete work, and that the performer “contributes by his interpretation something of novel intellectual or artistic value,” so has created a thing to which he or she is entitled to as a property right. Waring had successfully climbed the first two steps: he had proved: (1) creative contribution constitutes a valid intellectual property; and (2) his ownership of the band, a Pennsylvania corporation, gave him legitimate title to that property.

But was this property right lost through publication? Recall the distinction between “limited” and “general” publication. Prior to 1912, some courts had said that producing an as-yet unpublished play constituted a “limited” publication, and that rivals could stage competing productions, but could not produce printed versions. In 1912, the Supreme Court quashed this, stating that live performances did not constitute publication at all. But there is also another sense in which “limited” publication occurs.

Because they were marked “Not licensed for radio broadcast,” it was clear that Waring’s intent was to restrict their distribution to a defined audience. Thus, the publication was not sufficiently general to divest Waring of his rights in its sound recording. Two years later, Waring repeated his success, this time in a North Carolina court. This case was even stronger, as it involved a transcription disc from one of the Ford shows, marked “To be used only on the Ford Motor Program.” Bolstered by these successes, NAPA decided to go for the big prize: New York State.

NAPA member Paul Whiteman was picked to go up against station WNEW in RCA Mfg. Co. v. Whiteman. The facts were virtually identical to the Waring Pennsylvania case. The district court held for Whiteman, explaining that:

Prior to the advent of the phonograph, a musical selection once rendered by an artist was lost forever, as far as that particular rendition was concerned. It could not be captured and played back again by any mechanical contrivance then known. Thus the property right of the artist, pertaining as it did to an intangible musical interpretation, was in no danger of being violated. During all this time the right was always present, yet because of the impossibility of violating it, it was not necessary to assert it. (emphasis added)

To be continued…