Democracy of Sound (7 page)

When Congress considered copyright reform in the Progressive Era, the balance of power still teetered between those who wanted to strengthen the rights of copyright owners and those who sought to defend free access to the arts. The new copyright reform, with its compromise between composers and recording companies, won unanimous approval from the House and Senate Committees on Patent, and the bill sailed through both chambers, winning final approval in
the Senate on March 3, 1909.
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The legislation was the result of long, careful negotiation and had the support of Republicans and Democrats. Shortly before passage, Senator Albert Kittredge (R-SD) assured his colleagues, “This subject has been before the Patent Committee for four or five years, and the committee has expended a great amount of time and has worked hard in order to secure an agreement.”
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If anything, the political leaders of 1909 chose to err on the side of caution. When the committee proposed letting churches and schools perform copyrighted music without seeking permission, the publishers’ lawyer, A. R. Serven, commented that “enforced charity, whether by statute or by violence, is vicious and ought never to be resorted to.” The committee chairman retorted, “[Copyright] is, by the way, direct charity, because … your rights are purely statutory.”
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In other words, copyright was a privilege granted by the government, not a moral right possessed by creators. Many of the testifiers disagreed, viewing the creative artist or rights owner as the greatest priority for the law. As the painter John LaFarge told Congress, “The originator of a thing should not be put to proving his case against the outside world, but the outside world should prove their case against him.”
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At the very outset of the revision, Librarian of Congress Herbert Putnam observed, “The district attorney has remarked that our statutory laws ought to be in two parts, the first, of laws to be followed, and the second of ‘moral yearnings.’ In our proposals for copyright we had, I think, better leave the moral yearnings to a later generation or at least a later session of Congress.”
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The quip came true. Later generations and later Congresses would expand the scope of copyright to suit greater moral aims, but, in the meantime, the “copyright forces” got less than they asked for.

Pirate Arias, Bootleg News, and Other Problems from Europe

While the ink was fresh on the new copyright act, the Eastern District Court of New York handed down one of the first decisions on a clear case of piracy. The case involved a colorful and mysterious character who arguably pioneered piracy and the legal hijinks associated with it: Wynant Van Zant Pearce Bradley. This entrepreneur, whose name soon became familiar to court observers, started out pirating records for Zon-O-Phone. In 1902, he trademarked the terms “Talk-O-Phone” and “Monogram,” and ventured out from his native Brooklyn to enlist investor Albert Irish’s help in starting the Ohio Talking Machine Company. Ohio brought out a line of phonographs that closely imitated the Victor company’s machines. The various models bore the names of (Victor) Herbert, (John Phillip) Sousa and other noted composers, apparently without permission.
Even the logo for “Monogram” discs used bold-faced letters for “gram,” likely hoping to link itself to Victor’s “gramophone” in the consumer’s minds. Victor soon filed suit against the company for patent infringement; Albert Irish went bankrupt; and Bradley took to inveighing against the “Victor interests” in the pages of
Talking Machine World
. By the time Victor won the patent case, Bradley was in hot water again for a disc-pirating operation, Continental Records.
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The Italian label Fonotipia Records sued Bradley for copying arias that it had licensed Columbia Records to produce and sell in the United States. Columbia and Victor joined the suit as plaintiffs, alleging that Bradley also imitated their products, and the Circuit Court of the Eastern District of New York heard the case in 1909.

Continental was a wisp of an organization. Bradley claimed only to be its salesman, but the court could not dig up any other name in connection with the company. Continental stated its base as New Baltimore, New York, though no office or plant could be found there. When Columbia’s agents purchased some records from Continental, the receipt showed the address of a storage company. Music historians Allan Sutton and Kurt Nauck believe Continental made new masters from commercially available discs, shipped the new molds to “an undisclosed foreign location,” and then exported them back into the United States.
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That the court could find no office or plant for the company suggests that this export-import scheme may have been true. However, Bradley could just as easily have pressed the records at a secret factory or shop in the United States. He might have told the court that the goods were imported in the hope that the product’s ostensibly “foreign” status would deflect copyright concerns. The arias Continental copied were originally recorded in Italy, and a consumer might expect them to be foreign in any case.

Justice Thomas Chatfield observed that Columbia’s “originals” themselves were copies, in a sense. Using the disc method pioneered by Emile Berliner in 1888, the sound waves of a performance were etched onto a flat disc called the “master” record.
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From this first matrix, Chatfield observed, “numberless reproductions, substantially duplicates even in minute details of the original record” were made.
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Earlier wax cylinder recording required the singer to perform a song over and over again; the cylinders were engraved in small batches, with recorders arrayed around the performer to capture the sounds simultaneously. True mass production was not possible until Berliner invented a master disc from which any number of other discs could be pressed. In a sense, the cylinder recordings were more “original” than the discs sold by Columbia, because the latter were copied en masse from the initial master record. Nonetheless, the court distinguished between Columbia’s “duplicate originals,” which were mass-produced from an original recording of the performance, and Bradley’s copies. “The defendant’s records are not duplicates,” the judge reasoned, “even in
the sense that they are removed from the original singing by but one reproduction from a matrix.… The Continental Record Company makes its records from commercial discs of the complainants and must produce a second matrix before the copies can be pressed or stamped.”
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The pirated records were a further step removed from the real thing.

Justice Chatfield noted that Bradley had not exactly imitated the distinctive red label of Victor’s records, which the company used to distinguish its high-end line of classical music. In fact, the Bradley records did not look much like the originals from which they were copied, meaning that the pirate could not be accused of “palming off” his copies as if they were the originals.
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Continental’s advertising made it clear that the records were duplicates, containing the same sounds but not identical to the originals as material objects. The judge noted, though, that Continental’s claim of equal sound quality was “a question of fact … in which the public is interested.”
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If consumers believed that Continental records were just as good as Victor records, and then discovered that Continental played poorly, they might be reluctant to buy either one in the future. The court found that Continental made its records of less durable material, which was prone to “scratching and irritating sounds.”
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In a sense, Bradley’s knockoffs resembled the cheap generic versions of contemporary name-brand products, such as cereals or toaster pastries. In the
Fonotipia
case, however, the court ruled that generic editions of musical recordings could not be sold alongside the original, name-brand product. The performer’s right to his or her creative work did not figure much in the decision—as the judge noted, the musicians had worked under contract for Fonotipia and were not involved in the lawsuit. Instead, Bradley was faulted for his false claim of equal sound quality and for taking advantage of Victor’s reputation.
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Both the talking machine ads and Bradley’s legal strategy suggest that distinctions between original and copied records had been commonplace in the market until the
Fonotipia
decision. Russell Hunting and other early recording artists were well aware that unauthorized copies of their recordings circulated on the market. Listeners did not necessarily identify one recorded performance as the exclusive product of one record company, and Bradley sought to exploit this uncertainty for all it was worth. The Supreme Court’s
White-Smith
decision held that anyone could produce piano rolls of songs, since this use was merely a mechanical application and not a copyrightable expression in itself, but just a year later the
Fonotipia
ruling declared that disc recordings could be regulated by law, through principles of fairness, consumer protection, and the public interest. “The reproduction of songs by famous singers and artists is both educational and beneficial to the people as a whole,” Chatfield wrote, “and the court cannot but take notice of the fact that music has an educational side, and appeals to substantially everyone, even though they be unconscious of the result.”
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The
judge associated a recording with the performer, whom record companies paid to record and cultivated as popular sensations. If the court had ruled otherwise, men like Bradley could have undermined the link between a star performer and the company that had contracted his services, and recorded sound might have served as fodder for any company to exploit.

It is important to note that
Fonotipia
did not create a new property right. The phonograph recordings were not eligible for copyright, as
White-Smith
made clear, and the new Copyright Act itself did nothing to change their legal status. As the
Harvard Law Review
observed, the case involved “nothing more than the reproduction of an unpatented and uncopyrighted article.”
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The district court’s ruling against Bradley centered on the notion of unfair competition, holding that he had not violated copyright but, rather, had exploited his competitor’s investment in the recordings. The court observed that the Victor Company had built an expensive plant in Camden, New Jersey, and spent a great deal of money on advertising its product. “It may be argued that the imitation would go out of the market and be removed from interference with the original if the product proved unsatisfactory,” Justice Thomas Chatfield said in the ruling, “but it would seem that business reputation and excellence of product are entitled to some protection from imitations which discourage further use.”
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If nothing else, the capital investment in both production and promotion should be immune to unauthorized use. The company’s reputation was a possession of sorts; advertising could create a value in the good that the court was bound to protect.

Fonotipia
covered ground that was revisited in 1918 by a better-known ruling,
International News Service v. Associated Press
, which recognized a quasi-property right in “hot news.” The International News Service (INS) had paid employees of the Associated Press (AP) to reveal the latest information telegraphed from the war in Europe, which was then published in INS’s newspapers at the same time as AP’s.
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The Court condemned INS for “taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown.”
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The fact that Archduke Franz Ferdinand had been shot, triggering the outbreak of World War I, was not in itself AP property, but its significance to the public was owned by the organization that did what it took to collect the information. Its newsworthiness was value that the company created, capital transmuted into history.

Copyright law had always protected the specific expression of an idea, but never facts. As a later court observed, “The case presented particular difficulty because of the great public interest in the freest dissemination of the news.”
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However, in
INS
the Supreme Court found that news organizations could enjoy a limited right to own information itself, turning to a similar argument
of unfairness that underlay the
Fonotipia
ruling. Limiting the circulation of important news might be bad for the public, the judge reasoned, but not having the news at all because the AP’s profit motive was diminished was worse. “Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant’s legitimate business precisely at the point where the profit is to be reaped,” wrote Justice Mahlon Pitney for the five-to-three majority.
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The “hot news” doctrine offered a limited right that, in some ways, resembles the compulsory license. The music publishing system created by the 1909 Copyright Act empowers the composer of a piece of music to authorize the first recording of the composition; afterwards, anyone is free to record his own version, paying a flat royalty for each copy that is produced. The
INS
decision allowed news organizations to take advantage of their reportage before anyone else did, much as composers could choose when and if their music would be recorded. Whoever went to the trouble of obtaining the scoop was entitled to benefit from circulating the information for some amount of time, at least so long as the news is “hot.” Both the compulsory license and the
INS
ruling respect the right of an individual (or, more likely, a firm) to benefit from investing labor and capital into the production of an intangible good, which is then presented as a material thing, like a piano roll or a newspaper.