By Bruce D. Epperson

It was the inability of the other justices (and, for that matter, most congressmen and industry executives) to grasp that a phonorecord was comprised of two separate elements that muddled the Court’s decision and the deliberations of the Congressional copyright committee. First, there is the musical composition, an idealized musical concept, which can usually be published on paper. Second, there is the sound recording, a “rational collocation of sounds,” the specific actual expression of a performance or a sequence of captured sound. This can be the playing of a composition, an improvised musical performance, or even non-music.

Moreover, in basing the idea that a “copy” must be a “written or printed record” of the original, the majority came very close to, if not outright stating, that a record could never meet the eligibility criteria of the Progress Clause. Albert Walker, lawyer for the Victor Co., subsequently told the copyright committee that “the Supreme Court says these perforated rolls are not copies. If not, they are not writings.” This, of course, is a logical inversion, but in the air of uncertainty after the White-Smith Music decision he was able to get away with it.

 On the other hand, Walker’s boss, Horace Pettit of the Victor Co., told the committee that Section 4 of the proposed act, which made “all the works of an author” eligible for copywriting, actually pulled phonorecords within the class copy-eligible works. However, noting that this was “somewhat doubtfully expressed,” He urged the committee to add records to the list of things like books, magazines, maps, drawings and photographs for which specific copyright registration could be sought from the copyright office. The committee refused this suggestion, making an (almost literally) last-minute decision.

Phonorecordings would not be considered “copies” of a composition, and couldn’t be copyrighted. However, provided the composition was registered and the composer had allowed at least one person to record it, then all comers could too, if they paid a mandatory license fee of two cents a copy. This was somewhat analogous to the licensing system used  for stage plays.

Congress made one other change in reaction to Pettit’s testimony, and in doing so, created a century-long conundrum, and not just for phonorecords. They changed Section 4 of the Act from “That the works for which copyright may be secured under this Act shall be all the works of an author” to “That the works for which copyright may be secured under this Act shall be all the writings of an author.” “Writings,” of course, is the language used in the Constitution, so it defines the maximum power that Congress can exercise. But in making the 1909 change, did Congress mean that all writings fell under the umbrella of the act, but that it could refuse registration and protection to some of them (such as records); or did it mean that some products of artistic creation (like records) were not “writings” and thus were Constitutionally outside of Congress’s power to exercise power over them pursuant to the Progress Clause? As Pettit feared, what ensued was almost a century of legal chaos.

To be continued…

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…

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…