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…

By Bruce D. Epperson

After the failure of the Articles of Confederation, the United States government commenced operations under its new Constitution in April,1788. Article 1, Section 8, subsection 8 of the Constitution (the “Progress Clause”), authorized congress “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Note that the Progress Clause did not specify a “copyright,” merely a “right,” but it is clear that the participants to the constitutional convention were thinking in terms of English-style copyright. In Federalist #43 James Madison, in explaining the Progress Clause, stated that “The utility of it will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.” (Whether, in making reference to “a right of common law,” he was arguing for the two-layered “cupcake” theory of underlying common-law copyright that the House of Lords voted against in 1774 has long been debated. Suffice it to say that the majority view is “probably not.”)

One of the first acts of the new congress in 1790 was to enact a copyright law. Printed works were eligible for a British-style, 14/14-year term. An author had to register the title of the book, issue a newspaper notice within two months of publication, and deposit a copy of the printed book within six months. An American rerun of Donaldson v. Beckett ensued in 1834 in Wheaton v. Peters. A publisher forgot to fulfill some of the formalities of the copyright act, and had some of his books pirated. Acknowledging that he had forgotten to fulfill all the requirements, the publisher pled that he should nevertheless be entitled to some kind of common-law copyright. With no homegrown law yet to follow, a majority of the Supreme Court used Donaldson, interpreting it to mean that once a government copyright scheme has been put in place, it is the only copyright law that remains—common-law copyright is cut off.

But Justice Thompson, in a dissent, argued that in their vote, the House of Lords had meant only that the Statute of Anne cut off common-law copyrights, not government copyright laws in general. The Statute of Anne never applied to either the colonial predecessor of Pennsylvania or the current Commonwealth.  Therefore, while there may not be a common-law copyright under federal law after publication, this did not apply to Pennsylvania. The “cupcake” idea was back, only in a new, federalized form. Justice Thompson outlined an alternative vision of copyright, one in which state-law powers formed the bedrock of an all-embracing, perpetual, copyright regime, with federal statutory copyright a thin frosting slathered on top. After a few years, the federal copyright may melt away, but the state-law copyright always remains. Thompson’s argument didn’t carry the day in 1834, but a hundred and seventy years later, it became one of the foundations to Judge Graffeo’s opinion in Capitol Records v. Naxos IV.

To be continued…