Democracy of Sound (6 page)

Pettit struggled to analogize the phonograph—“a writing upon a record tablet … not to be read visually, but audibly to be read through the medium of a vibrating pencil”—to traditional “writings” like books or photographs.
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His challenge was to portray the phonograph as similar to the kinds of works already protected by copyright, yet sufficiently different from a written composition to merit a separate copyright. “It is a picture of the voice, as perfectly as a photograph is a picture of a man, or of a thing,” he said, “and all the personality and all the characteristics of speech of the man uttering it are there recorded.”
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Did he mean to suggest that the picture was exactly the same as what it represented? Was the “picture of the voice” identical to the written words and tones articulated by the voice, or a distinctive work in its own right?

In this regard, what Congressman Bonynge first thought of the content of the recording—a lecture—is key. Thomas Edison initially imagined the phonograph as an office dictation device, with domestic applications such as recording a baby’s first words or the voice of a grandparent for posterity. He did not anticipate that the medium would be dominated by the sale of prerecorded material, whether musical or literary in nature.
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In this still-early phase of sound recording, the devices were known as talking machines, not “singing machines,” and the notion that one performance of a lecture would be so different from another as to be exclusively used by one company did not seem self-evident. Like Pettit, Bonynge grappled for the right words: “Do you mean that if the lecturer delivers the lecture to one of the talking machines that you should take a copyright upon that disk, or whatever it is, that record, I suppose is what you call it?”
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What set one version of the lecture apart from the other? If the talking machine company owned the copyright for a recording of those words, how could the lecturer be free to make another record of the text for another company?

Whatever the artistic merits of the individual recording, the talking machine companies were quick to point out its financial significance. Even if a singer’s performance was not recognized as a separate work of art, the company paid
him, and him specifically, a tidy sum to record it. “We might pay Mr. Herbert or Mr. Sousa or Mr. Caruso, or any of the opera singers, a thousand dollars for making a record,” Pettit said.
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As the bandleader and composer John Philip Sousa, who was no fan of the talking machines, noted, “They [the talking machine companies] get much more out of the human voice.… They pay Caruso $3,000 to make a record in their machines, because they get the human voice. And they pay a cornet player $4 to blow one of his blasts into it.”
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The public did not want just any human voice, though. They would pay good money to hear world-famous tenor Enrico Caruso sing an aria, and, with the rise of jazz, Victor might soon offer more than $4 for a particular cornet player’s “blast.” The Congressional hearings came at a time when phonograph companies began to experiment heavily with advertising, cultivating the celebrity of recording artists like never before. The images of stars like Caruso, Emma Calvé, and Pol-Henri Plançon gave the phonograph a mystique of highbrow sophistication that Victor was willing to spend large sums to create.
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Pettit suggested that the talking machine companies should receive copyright protection for their recordings because it took a sizable investment to create the product the public most wanted. Why should another company be able to exploit the commercial advantage that Victor had created by hiring Caruso? “It is perfectly possible, within the known arts, for that record, after we have made it, to be reproduced by a mere copperplating process by somebody else and copied,” he said, “so that we would pay the thousand dollars or so and have no protection against the party manufacturing a duplicate of it.” In other words, money talks. Even Sousa agreed on the general point when Representative William Campbell (R-OH) asked if he was seeking greater incentives to write music. “Oh, yes,” the bandleader said. “I can compose better if I get a thousand dollars than I can for six hundred.” The congressmen guffawed at Sousa’s frankness. “That is the real reason,” Campbell concluded.
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Figure 1.4
Like so many of its competitors, the Excelsior Phonograph Company wanted consumers to know that each of its records was original and individually “made to order,” offering the distinctive performances of particular performers as well as more generic fare, such as “piccolo,” “banjo,” or “Vocal Quartettes.”
Source: Phonoscope
1, no. 16 (November–December 1897): 16.

The exchange did not merely reflect Sousa’s pecuniary instincts. Rather, American copyright had always centered on commercial incentives. Lawmakers traditionally premised copyright on the principle of giving just enough protection to encourage artists to bring their creative works to the market. The Constitution aimed “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.”
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A composer’s song did not belong to its creator forever. Rather, legislators aimed to provide a window of time in which a creator could reap sufficient benefit from the work to be motivated to create it in the first place. When the Connecticut Assembly granted the first copyright during the Revolutionary War, the protection lasted only five years.
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Congress did not even include music in copyright law until 1831, a limitation that reflects the law’s modest ambitions.
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The congressmen who wrote the Copyright Act of 1909 continued to be skeptical of efforts to make copyright a more permanent property right, emphasizing instead the importance of preserving the public’s access to creative work. When R. R. Bowker and his allies in the professional associations pushed hard for a copyright term of the author’s life plus fifty years, Congress did not listen. As Congressman William Sulzer (D-NY) quipped, Russia provides such a term for copyright because there the artist “does not get to live very long.”
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Legislators decided to keep a term of twenty-eight years, after which an author could renew for another twenty-eight years. If no one expressed interest in renewal, then the work would revert to the public domain, and anyone could make use of it.

If the object of American copyright had been to give artists a reason to invest their labor in creative work, Pettit and other lobbyists focused instead on the financial incentives of big business. Sound recording raised the question of how copyright should work when the creator in question is not a solitary novelist or songwriter, but a capital-intensive corporation using costly technology and marshalling the efforts of many contributors to make a final product. The earlier hearings in 1905 had posed the question from a different angle, when lawmakers discussed the status of composite works like encyclopedias. The committee
groped for a term that could describe the legitimate owner of the copyright for such a product. The term “proprietor” had been used in the law, but the Register of Copyrights, Thorvald Solberg, observed that the courts had defined a “proprietor” as an “assignee of the author,” not as a corporate author per se.
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One committee member noted that many scientific works were being written collectively, and another raised the example of forewords written by several professors for a series of books. “The promoter, the projector, the man who has gotten it up is Professor Gayley,” Brander Matthews of the NAAL observed, “but the person who is supplying the money is another; there is a double case—can the editor take out the copyright or is the publisher to do it?”
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Matthews hit closest to the target, opening the question of whether a company that manages the allocation of labor and capital, creating nothing itself, ought to be the holder of a copyright.

In 1909 as in 1905, Congress dodged the issue. Sound recording was a fresh and unfamiliar medium, and the politicians chose not to prolong an already complicated process of copyright revision, which affected so many interest groups. It appeared altogether too difficult to assign some kind of copyright to specific renditions of music represented on rolls of paper or in phonograph grooves, since the appropriate “author” was so hard to identify.

One author was already on hand—the composer—and the Copyright Act protected a composer’s right to benefit from reproductions of a musical work while allowing the talking machine companies a degree of latitude to reproduce a performance of that work. The phonograph and piano roll firms did not obtain copyright protection for their products, but they did receive a unique license (literally) to exploit the work of songwriters. The compulsory license system treated music differently from any other category of copyrighted material; it allowed companies to record and manufacture versions of the original article by paying a flat rate per copy produced. Under the system, when George Gershwin wrote “When You Want ‘Em, You Can’t Get ‘Em (When You’ve Got ‘Em, You Don’t Want ‘Em)” in 1916, he was able to choose how the song was first recorded. After the initial recording was released, though, any other company could hire Frank Sinatra or Billie Holiday to record renditions of the song, as long as it paid two cents per copy to Gershwin (or his publishing company).
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Congress also favored limiting copyright on the basis of property rights, however counterintuitive that notion may sound to twenty-first century ears. Copyright was not just an author’s property; it was also a kind of monopoly. For twenty-eight years, at least, the copyright holder had absolute control over how a book, photograph, or play would be reproduced. However, this power could be pernicious if it limited the way a consumer made use of property once purchased. For instance, at the 1906 hearings, music publishers had sought to bar the renting and sharing of sheet music on the grounds that the copyright owner
retained the right of performance. They suggested that only the purchaser of a song received the right to perform the song, as a sort of license. If a church choir wanted to perform a cantata, it would have to buy one copy of the music for each of its singers. When Congressman John C. Chaney (R-IN) asked if the publishers’ position was that “the property itself does not carry the right to use it,” an industry representative agreed enthusiastically.
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However, Representative John Gill, Jr. (D-MD) insisted that the purchaser of music acquired “a property right which he can use as he pleases.”
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Gill compared the composer to a patentee, who can control the reproduction of his product but not its use. If a man buys a tractor, he can freely loan it to his neighbor without seeking the tractor company’s permission. In Gill’s view, limiting the way the same man could use a song he purchased would be an unwarranted invasion of his property rights.

Congress also had other more specific anxieties about monopoly on its mind. Aeolian, a piano roll company, had bankrolled White-Smith’s case against Apollo, hoping to test the judicial waters before making too great an investment in machinery, inventory, and contracts for rights to music. The manufacturer struck a deal with numerous publishers granting it exclusive permission to record the publishers’ songs if the composers prevailed in the case.
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The Supreme Court, of course, ruled against the copyright holders. However, if Congress allowed composers and publishers to negotiate exclusive licenses with mechanical reproducers, then Aeolian would have had a shot at cornering the industry.

The company’s scheme discomfited congressional observers, who feared “an absolute unqualified monopoly” would fall into Aeolian’s hands.
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The copyright reform bill evolved during the presidency of Theodore Roosevelt, when politicians embraced the cause of battling trusts of all kinds; music seemed no different than oil or ice in this regard.
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Indeed, the notorious Keith organization was busy consolidating control over the nation’s vaudeville industry, and the talking machine business looked ripe for a takeover.
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Smaller piano roll firms worried that a monopoly would form, and some composers blasted the Aeolian scheme as dirty dealing by the “phonograph trust.”
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The compulsory license provided a clever resolution of these concerns, as it gave the composer a degree of control over his composition and a source of revenue, while also preventing a recording company from controlling how any particular song was recorded.