Democracy of Sound (5 page)

White-Smith believed that a piano roll that tamped out the melody of “Kentucky Babe” was as much their property as the sheet music that represented it in treble clefs and quarter notes. If another company could sell their song as a roll without paying them a cent, White-Smith might suffer diminished sales of the original written music. What was the difference between the holes punched in paper that cause a piano to play a particular melody and the musical notation representing a song? The music publisher’s attorney, Livingston Gifford, argued that mechanical reproductions were covered under the Constitution’s protection of an author’s “writings,” which originally referred to books, maps, and charts but had been extended to include photographs and paintings. “‘Musical composition,’ the term of the statute under which this case comes,” he proposed, “is broad enough to include perforated music.”
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The Apollo Company, however, insisted that copyright could not apply to a piano roll. The perforated paper was part of a machine, which was only subject to patent. “Things intended for mechanical function—for use in themselves—will not infringe copyright,” Apollo’s lawyers Charles Burton and John O’Connell told the Supreme Court, “and are not copyrightable merely because
of incidentally being able to perform some part of the function of things copyrightable.” They also insisted that the judges stick to the wording of the current copyright statute, which did not address any mechanical reproductions of music. Their argument had some grounding in international law. Since the making of music boxes and musical clocks was an important industry for Switzerland, the Berne Convention of 1886 had exempted mechanical devices from copyright law. Popular composer Victor Herbert, however, told the
New York Times
that a music box was in no way the same as a player piano roll. “No possible harm to the composer could be foreseen,” Herbert charged, “because the reproducing device [the music box] was a permanent, unchangeable part of the instrument and the selections reproduced by the same were limited to but few short pieces.”
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During the oral arguments, the courtroom was full of gadgets; music boxes, wax cylinders, and an easel draped with perforated paper were on display.
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On the cylinder phonograph, a metal stylus etched the pattern of vibrating sound waves; the stylus could retrace the grooves to recreate the sound, and users could shave the pattern off to record a new sound in the wax.
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Although the flat disc phonograph invented by Emile Berliner in 1888 lacked this rerecording capability, the hard-rubber discs produced louder sound than cylinders, which often required users to listen through rubber tubes and earplugs.
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Curiously, there is no evidence that disc recordings were present in the courtroom during the trial. In 1908, the cylinder was still at the height of its popularity.
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The plaintiffs wanted to illustrate to the judges the array of old and new recording technologies. They hoped that a demonstration of the player piano versions of “Little Cotton Dolly” and “Kentucky Babe” would persuade the judges that the sound generated was sufficiently similar to White-Smith’s original written compositions to constitute copyright infringement. “Chief Justice [Melville] Fuller, with a twinkle in his eye, inquired whether or not it was proper that Justice [John] Harlan, who is from Kentucky and is a vigorous youngster of some seventy-four years, should sit in the case,” the
Washington Post
reported. “None of the justices laughed louder than Justice Harlan.”
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The experiment may have amused the Court, but it did not accomplish what White-Smith intended. The justices looked at the various objects before them and concluded that they were fundamentally different from the visual materials covered by copyright. Writing for a unanimous Court, Justice William Day defined a copy as “that which comes so near to the original as to give to every person seeing it the idea created by the original.” Neither the grooves on a wax cylinder nor the holes in a piano roll were intelligible to the human eye, unlike a score, a painting, a photograph, or a novel. They conveyed no meaning, in Day’s words, and thus could not receive copyright protection. Like a computer disk or video game cartridge, the piano roll contained and communicated information
in a way no one could understand without the help of a machine, and the Court believed copyright was limited to expressions that were visually accessible.
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Though he concurred in the decision, Justice Oliver Wendell Holmes Jr. still felt uneasy with the Court’s interpretation of the statute. For him, copyright applied to any “new collocation of visible or audible points—of lines, colors, sounds, or words.” Any machine that recreated such an assemblage of sound made a copy of it, and if the current law did not permit this expansive view, then he believed Congress ought to change it. Indeed, the
Washington Post
reported that members of Congress followed the case closely.
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Copyright reform hearings then being held had commenced three years earlier, but the Patents Committee held off drafting a fresh proposal for copyright reform until the Supreme Court issued its decision. In a way, the Court threw down a gauntlet that pushed Congress to bring the reform process, frequently a long and contentious one, to a close. President Theodore Roosevelt had called for a comprehensive revision of copyright law in 1905, citing the “many articles which, under modern reproductive processes, are entitled to protection.” However, Congress failed to resolve the differences between various copyright interests, only passing the Copyright Act of 1909 after the Supreme Court handed down its provocative decision.
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Legal scholars have subsequently described the
White-Smith
decision that music must be visually perceptible to be copyrighted as “incredible” and “truly shocking,” but the Court felt obligated to rule only on the existing statute, which made no mention of mechanical renditions of music. In fact, leading law journals at the time viewed the ruling as logical and straightforward.
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Perhaps recognizing the shortcomings of the existing law in regard to new technology, the Court concluded that “considerations of the hardships of those whose published productions are not protected by the copyright properly address themselves to Congress and not to the courts.”
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The songwriters and their business partners had been pressing their case since 1905, and the
White-Smith
case lent new urgency to their quest to expand the scope of musical copyright.

Copyright Reform in the Progressive Era

In 1905, Congress went where the copyright holders were. Lawmakers left Washington in March with five copyright bills unresolved, and the Senate Committee on Patents arranged a conference in New York the following May to hear from a variety of interested parties: academics, artists, song publishers, and newspapermen, each representing some part of the city’s diverse media. “It is generally admitted by those most directly concerned that the copyright laws of the United States need revision,” the Librarian of Congress, Herbert Putnam,
observed in April 1905. Putnam decided to hold the meeting where those “most directly concerned” could easily offer their views on reforming copyright.
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Finding receptive ears at these meetings, representatives from publishing, music, and the visual arts pressed for the idea of divisible copyrights. For example, dramatists wanted separate “show-rights” and “stage-rights” for their works. Most speakers advocated greater punitive damages for infringement and the extension of copyright for “as long a period as possible.”
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Preferably, copyright would be defined separately for each category of works. Brander Matthews, a Columbia University literature professor, suggested that newspapermen might need a shorter copyright than the author’s-life-plus-fifty-year term that his group, the National Academy of Arts and Letters (NAAL), sought. “The first thing to do is to let each one of the particular specific callings state what it wants,” he said.
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A musician, after all, might want rights that individually address printing, performance, and recording of his work. “I know that in France you cannot play a tune on a hand organ without the permission of the holder of the musical copyright,” Matthews said, while not explicitly advocating the same law in America.
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Music publishers bemoaned the increase in illicit copying that accompanied the decreasing cost of printing. The development of photolithography in the nineteenth century greatly enhanced the efforts of sheet-music copiers. New technology permitted pirates to create nearly identical copies of sheet music without the sloppy mistakes that had plagued earlier imitations.
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At the New York conference, George W. Furniss of Music Publishers’ Association described the process:

A person with ten or fifteen dollars in his pocket can go down the street and have a popular composition photographed and put into plates and placed on the market in a very short time, and it will cost several hundred dollars to capture a few pirated copies, with no chance of getting any relief from the individuals in that line of business.
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In one such case, a competitor sold hymns owned by the Oliver Ditson Company under different names, and Furniss asked Congress to allow copyright owners a greater window of time in which to investigate such pirates before they had to file suit. “It took us a long time to find them,” he added, “because we were not all churchgoers ourselves.” Even when a piece was an outright copy, the excellent quality of reproduction could keep investigators from decisively identifying the song as a knockoff.
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In these early hearings, the publishers were concerned with tweaking procedural issues in the copyright law, such as the period of coverage or the time allowed to take legal action against infringers. They did not press for
a fundamental change in the scope of copyright. Although the Librarian of Congress mentioned the rising use of technology, the music publishers did not dwell on the question of sound recording or mechanical reproduction. “There is a suit on now that has already cost twenty thousand dollars against the mechanical instrument men, who have taken our tools without any consideration at all,” Furniss remarked. “We believe, however, that we shall succeed in that. We believe that the present law will be sufficient to protect us.”
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If anything, in 1905 they were more perturbed by the ease of copying sheet music that cheaper printing technology had allowed.

The copyright forces found a less congenial atmosphere at hearings in Washington the following year. By 1906, the music industry worried about mechanical reproduction more than before. Confusion surrounded the status of sound recordings in the existing law, and few were sure of the status of written music in the new legislation. Representative Frank Currier (R-NH), chair of the House Committee on Patents, quizzed composer Victor Herbert about whether the talking machine companies enjoyed protection for the records they make. “I think they do,” Herbert averred. If one company started copying another’s records, he said, “they would go for them,” but Currier was not convinced. The two went on for several minutes, Herbert saying the piano roll and phonograph companies had legal protection and the congressman saying he was pretty sure they did not. In any event, Herbert said, sheet music was definitely not shielded from unauthorized reproduction. “Since the courts have held that the perforated roll is not an imitation of the sheet music,” he lamented, alluding to the
White-Smith
case, “we have absolutely no ground to stand on.”
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Meanwhile, the talking machine companies seized on the conceptual muddle of copyright law to push their own interpretation of property rights. If the music publishers, who represented most composers, were going to get rights to mechanical versions of their music, then the makers of piano rolls and phonographs should receive a copyright for their unique reproductions. Horace Pettit, speaking for the Victor company, suggested that Congress insert the term “talking machines” into the list of categories of goods covered by copyright. The proposed law made no mention of mechanical reproductions as a distinct type of copyrightable expression, even though the drafters were otherwise specific in listing books, photographs, and dramatic works as eligible. According to Pettit, the phonograph recording of a specific performance by a great singer was a unique artistic work worthy of the protection of the federal government. “The particular characteristic utterances of a singer, or recitationist, or of an actor, or of an orator, or the particular instrumentation of a pianist, or leader of an orchestra,” he said, “independent of the composition itself … should be equally entitled to protection, as a photograph or reproduction of a work of art.”
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The committee offered ready, if not fierce, questioning. If a scholar gives a lecture in one place and Victor records it, Rep. Robert Bonynge (R-CO) asked, would Victor then own the lecture and be able to prevent the man from giving it again, or, perhaps, making another recording of it? Pettit insisted that the copyright for the abstract content would remain separate from the distinctive material expression of it—that is, the words or ideas of the lecture, as opposed to the actual vibrations engraved on a cylinder or disc—but this notion was difficult for many to understand in 1906. The words of a story and its particular appearance as a printed novel itself could not be severed in American law, which had always protected the tangible expression of an idea and not the idea itself. Sheet music and the phonograph presented a situation in which the same germ of creativity was represented in two distinct ways.
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