Intellectual Products: Copyright and the Founding of ASCAP
In August 2013, a state of emergency was issued by none other than Mother Monster herself, “A pop music emergency is underway,” read Lady Gaga’s Twitter feed, “911 summon the Monster troupes.”  The situation involved a disruption in the traditional business model for getting pop songs to the consumer market; highly anticipated new music from Katy Perry and Lady Gaga had been leaked by hackers for public preview online, months before their new albums, Prism and ArtPop respectively, went on sale. Consequently, singles like Katy Perry’s “Roar” and Lady Gaga’s “Applause” were immediately released to the public ahead of their originally scheduled dates. For Lady Gaga, the leaks all but ruined plans for a high-profile, tightly scheduled and choreographed multimedia build-up to the ArtPop album. This self-described “emergency” is only one of many difficulties affecting the commercial pop song trade throughout its history and the business of getting music to a wider audience. A century ago, songwriters, composers and publishers were dealing with their own pop music emergency: they were not getting paid royalties for some public performances of their music.
Besides the musical trends, tech changes and the celebrity associated with pop songs over the years, it is fundamentally a business intent on getting a creative product to the musical market, getting customers to pay for it, while also paying those who produce the product. However, music is not a physical product, but rather an intellectual one that requires special protection under copyright law. Musical copyright law in America has functioned as a protection against unauthorized musical reproduction since 1831, but as technology and culture have changed music in America, so have the laws which control rights to publish titles. However, copyright law does not advance as quickly as technology or culture does, leaving loopholes in protection. After composers and publishers had lobbied Congress heavily for revised laws which would keep apace with technology in 1907 and 1908, Congress passed new copyright laws in 1909, but certain aspects of the new law left their products without certain protections regarding live performance. By 1914, composers and publishers had grown impatient with constant infringement of copyright and a society formed to protect their copyrights, the American Society of Composers, Artists and Publishers, better known as ASCAP. The society changed the commercial music business forever by creating a system of collecting and distributing royalties while also policing musical performances. ASCAP did not change the law, but rulings from the Supreme Court allowed the society to collect royalties on performances not protected under copyright statutes. If it were not for the actions of founding ASCAP, I doubt there would be a modern business of pop music.
In 1914, the expanding music culture in America had increased the demand for all kinds of music products. American culture was awash in music; even though musicologist Charles Hamm notes that “Tin Pan Alley songs were for white, urban, literate, middle- and upper-class Americans,” rural sales of home pianos and cylinder recordings were increasing. With sales of sheet music brisk and piano sales at their peak, there was not just a vibrant culture of pop music in America, but also feelings that music was a healthy form of recreation; many factories even provided a piano for their employees as a morale booster. By 1910, piano production was at its zenith and instruments were readily available for purchase in the showrooms of department stores and also by catalogue, alongside the latest popular sheet music titles. The theatre provided a plethora of new musical experiences. Broadway musicals were becoming popular, the Vaudeville circuit often featured many new songs and annual revues like Ziegfeld’s Follies and the Passing Show at the Winter Garden Theatre had become spectacular forms of musical entertainment by 1914. A new ragtime dance craze brought a demand for music in urban restaurants, dancehalls, cabarets and nightclubs and the Victrola and its disc records were selling briskly for the home. Silent movies gave even more opportunities for composers to score accompaniments as well. In the early 1910s, a growth in musical products and culture allowed more people in more areas to experience new music.
While music was becoming more and more in demand, the earnings of famous composers and publishers also increased with the popularity of their songs. Having a piece of music popularized and made famous, had some tricky legal repercussions, particularly on how the parties involved get paid for the music’s use. Most composers earned a living through sales of sheet music songs which were readily introduced to the public via the stage. But music is not solely a consumer product, and it is an intellectual and artistic one and copyright law dictates the ownership of its intellectual property. Copyright law allows artists control of how their work is used and reproduced in not just musical products, but also for book publishing, film and even choreography. If a theatre owner, for example, wants to include a particular song in a show, he or she must pay the copyright owner, usually the publisher, the composer or both, a fee, or royalty, to use it. If this exchange does not happen, the theatre owner is in violation of copyright infringement, a crime punishable by law. Copyright for musical composition and sheet music did not exist in America until 1831, but as musical culture and technology changed, so did copyright laws. Copyright law had been amended in 1897 to include public performances in theatres and overhauled completely in 1909, to include sound recordings provided by increasingly popular piano roles, cylinders and records on the market. It seems as though with so much music in American culture and all the legal bases covered, composers and publishers would be content with the legal status of their work and the royalties they were receiving from their songs.
Even though music was experiencing a tremendous growth in popularity and copyright owners were receiving royalties, there were loopholes which rendered the system imperfect. Copyright laws from the beginning had always been slightly behind the times in American musical culture; the 1831 law that included musical compositions did not include public performance or require royalties for composers for example. In fact, popular composer Stephen Foster, whose songs are still remembered fondly in the twenty-first century, died in destitution in 1864 after he sold off the rights for all the songs that were included in the minstrel shows for which he wrote. The updated copyright law from 1897 included provisions for public performances but only for venues that charged a fee for entry such as musicals or vaudeville shows which sold tickets; the law did not include music played in public places which did not charge audiences to hear it like outdoor concerts or dance halls. The system worked well for theatrical settings where copyright was regularly obeyed and royalties paid, the songs of which were well publicized to encourage sheet music sales. Even from their inception, copyright law in America for music had been imperfect to cover all instances where a musician’s work could be used.
Copyright had been behind the times again in 1907, only a decade after Congress had approved an updated law and music publishers were starting to demand a newer law. Mechanical reproduction by talking machines and player pianos was changing the musical culture in America and record companies and piano role manufactures used copyrighted music with abandon, without legal repercussions. In 1907, a lawsuit whose outcome had the potential to change copyright law reached the Supreme Court involving music publisher White-Smith, who argued that player piano company Apollo was producing unauthorized piano roles of their titles, potentially in violation of copyright law. But since copyright did not include mechanical music, the Supreme Court ruled in Apollo’s favour, the decision saying, “we cannot think that [mechanical reproductions] are copies within the meaning of the copyright act.” Existing law was upheld, the music publisher lost the case and the system of copyright continued. Tin Pan Alley musicians, composers and publishing firms led by Victor Herbert and John Philip Sousa actively lobbied Congress for a new updated law following the decision. Composer Charles K. Harris even visited the White House to discuss the matter with president Theodore Roosevelt. Meantime, piano manufacturers and the American Musical Copyright League opposed a new copyright law. The issue was divisive; Senator Alfred Kittridge bitterly described record companies and the like “seize the musical child of the composer’s brain and devote it to their own selfish purposes.” The resulting legislation, the Currier-Smoot Act of 1909 was a compromise; it included mechanical reproduction, but if a composer allowed mechanical reproduction of a certain title, then other companies could also reproduce the same music. The issue of copyright had become so difficult by 1907 that not only was it the focus of a Supreme Court decision, but also congressional debate and a new copyright law.
By 1913 it seemed as though copyright law had still not caught up to music culture in America and the legal technicalities this time were on the intent of establishments to profit on performances of copyrighted music. The copyright law from 1897 did not include venues that did not charge an entry fee like the restaurants, dancehalls and cabarets that were increasingly using music as part of the ambience with the rising demand for social dancing in the 1910s. A theatre for example charges theatre-goes for tickets to see a show or musical and therefore, the venue profits from providing music; royalties then paid to composers dictated by the 1897 copyright law. However, if a business does not charge a fee and played a publisher’s music, copyright law does not cover this scenario since proprietors of such places were not receiving profits directly from music and therefore royalties were not owed to copyright holders. Paul Goldstein notes that such laws would be unenforceable because “to police each infringing performance and file lawsuits against them would likely cost more than any damages that might be recovered.” When popular composer Victor Herbert, a staunch champion in copyright protection, overheard a musician playing a piece of his music in public, for which he knew he did not receive a royalty, he knew that something had to be done by organising a society.
During a time when more and more businesses were building dance floors and hiring orchestras as part of the environment, copyright holders were growing increasing impatient with the public performance copyright situation, and in Progressive Era America if any improvement in society were needed, there were organizations formed to address such issues. The National Association for the Advancement of Coloured People founded in 1909 is a well-known example of such a society. The Progressive Party Platform from Theodore Roosevelt’s 1912 election bid reads like a labour movement manifesto, calling for an end to child labour, an eight-hour work day, a day off from work, and social insurance, just to name a few social issues of the time. Even the national pastime, baseball was organized with the short-lived player-centric Federal League. It was in this kind of setting where the concept of a society to protect ownership of copyright grew necessary to ensure that proper royalties get paid to the proper people. On 13 February 2014 at the Claridge Hotel in New York City, a group of songwriters, publishers and artists gathered and founded what would eventually become the American Society of Composers, Artists and Publishers, better known as ASCAP, whose goal was to be “the most powerful organization in the world” as announced from the front page of the New York Times. The early association was a who’s who of influential music industry names like publishers J. Whitmark, Joseph Stern, Walter Waterman and writers like Irving Berlin, John Philip Sousa, Gus Edwards, Victor Herbert, and Harry B. Smith, and the society immediately offered “several hundred applications for immediate membership,” annual membership costing $10. Even though African-American composer James Weldon Johnson was a founding member, Thomas Morgan and William Barlow note that many other African American composers were excluded from ASCAP. With the need for action regarding outdated copyright law, ASCAP had been founded as part of the organizational culture of the Progressive Era to address the concerns.
The goals of the new society were straightforward, to ensure that public performances would be monitored for use of copyrighted music and to create a method of collection and distribution of royalties from all sources, whether profitable public performance or mechanical reproduction. An earlier licensing organization, the Authors’ and Composers’ League of America, failed partly because its president Victor Herbert and vice-president Reginald de Kovan despised each other. Spokesman for the new organisation, George Maxwell said that, “the Society has not been formed to make a fight upon any one or to stir up trouble…now we are going to enforce [or rights].” Licensing societies had been in existence for decades in Europe already, in France, an organisation had been established in 1851; in America, members of ASCAP looked to the European system for guidance. The scheme involved licensing music, collecting fees and paying copyright owners for intellectual products. By selling “blanket licenses” to cover entire catalogues of a composers or publishers works, for example, cabarets, dancehalls and other such public places could purchase a whole catalogue of music for a flat fee and their establishments could use any songs from these catalogues they wished. Once these fees for public performance had been collected, along with those collected from record companies, the royalties are then divided up among the members. While copyright law remained somewhat out-of-date for the times, composers and publishers took their own initiative to create a system of royalty payments and copyright enforcement.
But ASCAP’s founding did not change the law; the original 1897 copyright law specifically mentions “performance[s] and representation be wilful and for profit” and that only such places would be responsible for paying a royalty. This left the question of whether or not the society could technically sue such places for copyright infringement. Victor Herbert had learned that the expensive and well-known restaurant Shanley’s, “The World’s Wonder Cabaret,” had been playing selections from his comic opera Sweethearts and, with support from John Philip Sousa, filed a test lawsuit against the restaurant in 1914. After a couple of years of legal limbo and initial defeats, Herbert and his lawyer Nathan Burkan appealed enough times to reach the Supreme Court. In the decision, Supreme Court Justice Oliver Wendell Holmes stated that “The object is a repast in surroundings that to people having limited powers of conversation, or liking the rival noise, give a luxurious pleasure not to be had from eating a silent meal. If music did not pay, it would be given up. If it pays, it pays out of the public’s pocket.” Meaning, music was a selling point of attracting the public’s attention regardless of entry fee and therefore, the business had financial gains due to music in the environs and should pay royalties. By decision of the Supreme Court, ASCAP officially was able to ensure that the owners of copyright were paid royalties for publically performed pieces of music in venues that did not charge patrons an entry fee. The Herbert v Shanley decision remained the standard for public play lawsuits for over half a century, according to Glynn Lunney.
With the legal precedent set, the American Society of Composers, Artists and Publishers quickly became influential in the music industry and popular among those involved in it. It also changed the business structure by unifying the royalty system under a single organization and ensured that intellectual property would be protected under copyright law. During the 1920s and 1930, when broadcasting became the new technology for consumers, ASCAP and a rival organization, Broadcast Music Incorporated or BMI, guaranteed royalties for music played over radio. In 2014, ASCAP had more than 400,000 members of all levels of the music industry and all genres ranging from classical to hip-hop to country. ASCAP fees are collected to give permission for popular music such as background music at stores, television commercials, symphonies, all of which pay fees. In 2013, ASCAP paid out royalties totalling about $851M its to members. The consequences do not just affect pop song history, but all of music industry generally, ASCAP and the licensing structure provides continued protection of the intellectual property of popular music and created the foundations of modern musical business structure.
Even though copyright law may not appear like it is a part of pop song history, its inclusion is paramount in understanding the nature of the product, how song is viewed legally and how these legal issues reflect music’s presence in popular culture. While songs can be sold and purchased, their actual intellectual property remains in the hands of those artists and publishers who hold the right of publication and reproduction under copyright law. The various changes in these laws, no matter how outdated some can seem, reflect the ways in which the public is exposed to music whether on stage, in a dance hall or by recordings. But when it seemed as though some composers were not receiving the royalties they felt they were entitled, they took the Progressive Era approach and in 1914, formed their own society, ASCAP, to regulate the performances and royalty structures that were part of their rights as holders of copyright, rights which were affirmed by the Supreme Court of the United states. The ramifications of this structure and the society reach well into the twenty-first century and continue to be influential in the modern music industry with hundreds of thousands of members from all strata of the music business and nearly a billion dollar exchanged in royalties.
“ASCAP Reports Strong Revenues in 2013.” The American Society of Composers, Artists and Publishers. ASCAP.com. 12 February 2014. http://www.ascap.com/press/2014/0213-2013-financials.aspx.
Emerson, Ken. Doo-Dah! Stephen Foster and the Rise of American Popular Culture. New York: Simon and Schuster. 1997.
Goldstein, Paul. Copyright’s Highway: From Gutenberg to the Celestial Jukebox. Stanford, CA: Stanford University Press. 2003.
Gould, Neil. Victor Herbert: A Theatrical Life. New York: Fordham University Press. 2008.
Lady Gaga. “Pop Music Emergency.” ladygaga.com. http://www.ladygaga.com/news/pop-music-emergency.
Lunney, Glynn. “Copyright Collective and Collecting Societies: The United states Experience.” Contained in Collective Management of Copyright and Related Rights, Daniel J Gervais, ed. Boston, MA: Wolters Kluwer. 2010. 339-380.
Monde, Chidereah. “Katy Perry’s New Single, ‘Roar,’ Leaks Online Ahead of Official Release.” NY Daily News. 11 August 2013. http://www.nydailynews.com/entertainment/music-arts/listen-katy-perry-new-single-roar-leaked-online-article-1.1423927.
Morgan, Thomas L and William Barlow. From Cakewalks to Concert Halls: An Illustrated History of African American Popular Music from 1895 to 1930. Washington, DC: Elliott & Clark Publishing. 1992.
“Progressive Party Platform” (1912). Contained in The Annals of America, vol 12, “1905-1915: The Progressive Era.” Toronto, ON: Encyclopaedia Britannica, Inc. 1976. 347-355.
Rader, Benjamin G. Baseball: A History of America’s Game. Chicago, IL: University of Illinois Press. 2008.
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Stempel, Larry. Showtime: A History of the Broadway Musical. New York: W.W. Norton & Co. 2010.
Tancs, Linda. Understanding Copyright Law: A Beginner’s Guide. New York: Oxford University Press. 2009.
“Today in History: February 13.” Library of Congress. Last updated 15 October 2010. http://memory.loc.gov/ammem/today/feb13.html.
“Trust for Control of Music Business,” New York Times, 14 February 2014.
Waters, Edward. Victor Herbert: A Life in Music. New York: Macmillan. 1995.
 Chidereah Monde, “Katy Perry’s New Single, ‘Roar,’ Leaks Online Ahead of Official Release,” NY Daily News, 11 August 2013, http://www.nydailynews.com/entertainment/music-arts/listen-katy-perry-new-single-roar-leaked-online-article-1.1423927.
 Charles Hamm, qtd in Larry Stempel, Showtime: A History of the Broadway Musical, (New York: W.W. Norton & Co, 2010).
 Craig Roell, The Piano in America: 1890-1940, (Chapel Hill, NC: University of North Carolina Press, 1989), 27.
 Linda A Tancs, Understanding Copyrights Law: A Beginner’s Guide, (New York: Oceana, 2009), 29.
 Ken Emerson, Doo-Dah! Stephen Foster and the Rise of American Popular Culture, (New York: Simon and Schuster, 1997), 264.
 Glynn Lunney, “Copyright Collective and Collecting Societies: The United states Experience,” contained in Collective Management of Copyright and Related Rights, Daniel J Gervais, ed, (Boston, MA: Wolters Kluwer, 2010), 345.
 White-Smith Music Publishing Company v Apollo Company, 209 U.S. 1 (1908).
 Neil Gould, Victor Herbert: A Theatrical Life, (New York: Fordham University Press, 2008), 214.
 ibid, 216.
 Edward Waters, Victor Herbert: A Life in Music, (New York: Macmillan, 1955), 338.
 Senator Alfred Kittridge, qtd in Gould, 214.
 The Copyright Act or 1909, or An Act to Amend and Consolidate the Acts Respecting Copyright, 60th Congress, 2nd Session (1909) contained in Linda Tancs, Understanding Copyright Law: A Beginner’s Guide, (New York: Oxford University Press, 2009).
 Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox, (Stanford, CA: Stanford University Press, 2003), 54.
 “Progressive Party Platform” (1912), contained in The Annals of America, vol 12, “1905-1915: The Progressive Era,” (Toronto, ON: Encyclopaedia Britannica, IN, 1976), 348-349.
 Benjamin Rader, Baseball: A History of America’s Game, (Chicago, IL: University of Illinois Press, 2008), 112.
 George Maxwell, qtd in “Trust for Control of Music Business,” New York Times, 14 February 2014, 1.
 Ledger book, 1914, ASCAP foundation Collection, Music Division, Library of Congress, Digital ID #as0001, accessed 13 June 2014 http://www.loc.gov/exhibits/ascap-100-years-and-beyond/early-years.html.
 Thomas L Morgan and William Barlow, From Cakewalks to Concert Halls: An Illustrated History of African American Popular Music from 1895 to 1930, (Washington, DC: Elliott & Clark Publishers, 1992), 49.
 Gould, 318.
 George Maxwell, qtd in “Trust,” New York Times.
 Gould, 317.
 Copyright Act (Public Performance of Musical Compositions,) Washington, DC (1897), Primary Sources on Copyright (1450-1900), eds L Bently & M. Kretschmer, contained on The University of Texas Tarlton Law Library, accessed 15 June 2014, http://copy.law.cam.ac.uk/cam/tools/request/showRecord?id=record_us_1897.
 Booklet advertising Shanley’s restaurant (1917) qtd in Gould, 216.
 As federal judge Oliver Wendell Homes asserted in Herbert v Shanley Co, 242 U.S. 591 (1917), found on FindLaw for Legal Professionals, Thomson Reuters, ip.findlaw.com, accessed 14 June 2014, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=242&invol=591.
 Lunney, contained in Collective Management of Copyright and Related Rights, 346.
 “ASCAP Reports Strong Revenues in 2013,” The American Society of Composers, Artists and Publishers, ASCAP.com, 12 February 2014, accessed 15 June 2014, http://www.ascap.com/press/2014/0213-2013-financials.aspx.