[Dixielandjazz] ASCAP HISTORY

Stephen Barbone barbonestreet at earthlink.net
Wed Mar 31 10:19:19 PST 2004


Interest history in the below article. IMO, the courts/statutes have
"protected" music for much too long a time period and that creates the
scam. Not the fact that it is protected. E.G. Copyrights are like
Patent's. The Drug Industry protects new drug formulations by patent.
However, only for a very limited number of years. After that the patent
lapses and anybody can make a "generic" drug using the identical
formula. If drugs had "musical" protection, Tylenol would be $50 a
bottle, with no generic equivalent..

A drug formula is "intellectual property" like music but IMO takes a
hell of a lot more intellect.

The idea that music should be protected for perhaps a 100 years or more
is absolutely ridiculous. Especially since most musical compositions are
based upon prior knowledge of prior musical compositions. After all,
there are only so many chord changes and so many melodies that can be
based upon them. Especially in popular music, OKOM or Blues. (Like 50
tunes based upon Bill Bailey?)

Anyway, see the below NY Times Article about how ASCAP was formed. Note
especially Supreme Court Justice Oliver Wendell Holmes' rationale for
making music a profitable venture in the third paragraph from the end.
Smart man, that Holmes. Profit? yes, but limit the time period. Anybody
for 25 years from copyright date?

Steve Barbone

Broader Principles: ASCAP

by David Hinckley
New York Daily News, March 22, 2004

Shanley's restaurant at Broadway and 29th St. was a welcoming kind of
place in the early years of the 20th century, especially if you were
showfolk. This was the heart of the Theater District. Shanley's was the
place where theater people met before and after the show to talk about
their world.

So Shanley's even offered its own orchestra, delighting patrons with
classics and hits from current shows. That's how, in the spring of 1915,
Shanley's came to be sued by composer Victor Herbert for performing
music from his hit operetta "Sweethearts" on the first day of April.

This, Herbert told the court, violated his copyright. As Herbert was
friendly with the Shanley family, there were some indications that both
sides had agreed to this legal test. Certainly it's clear that Herbert
was neither after Shanley's money nor all that interested in its
orchestral repertoire. He was after a much more lucrative and elusive
prize: judicial sanction for the broader principle that anyone who gives
a public performance of a copyrighted musical work must compensate the
copyright holder.

In the early 20th century, the embryonic music business consisted of a
fragmented and often adversarial jumble of writers, publishers, record
companies, artists, song pluggers and miscellaneous fringe players.
While publishers were the most powerful of this lot, songwriters were
gaining, simply because they were the creative fulcrum.

So it's no surprise that songwriters, with the help of publishers, would
take the lead in demanding compensation for all public performance.

Folklore says the seeds for the American Society of Composers, Authors
and Publishers (ASCAP) were planted in 1910, when Italian opera composer
Giacomo Puccini came to New York for the premiere of "The Girl of the
Golden West" and heard his melodies being played in restaurants.

He asked his publisher how much this brought him and was told "nothing"
-- at which point, the legend says, he explained how Europe had
copyright organizations that required licensing payments for all public

Puccini may have made such an observation. But the wheels were already
in motion for American composers to implement just such a deal for

The federal Copyright Act of 1909 permitted the licensing of any
copyrighted musical work performed "publicly for profit," though at
first no effort was made to create any such licensing entity. Then in
1911, the French performing rights organization Sociiti des Auteurs,
Compositeurs et Editeurs de Musique (SACEM) opened a New York office to
collect 5% of gross receipts from any music written or composed by
French copyright holders.

A number of American composers signed with SACEM, including Irving
Berlin, and in October 1913 Victor Herbert helped arrange a summit
meeting at Luchow's for American songwriters to consider a performing
rights organization of their own.

Thirty-six writers and publishers were invited. To Herbert's dismay,
only eight showed. Among the missing were Berlin and Jerome Kern, both
of whom feared Herbert's organization smelled a little like a union,
which they feared could infringe on their status as free agents who
could make all their own deals.

Despite the sparse crowd, the meeting went on, and after attorney Nathan
Burkan outlined a plan based on SACEM, a second meeting was set for Feb.
13, 1914, at the Hotel Claridge. This time more than 100
people showed up -- and ASCAP was officially founded.

Herbert, offered the presidency, deferred to George Maxwell. Twenty- two
publishers and 170 composers and lyricists signed on -- now including
Berlin, whose interest in protecting his songs outweighed his concern
about being lured into some sort of Socialist confederation.

But agreeing to form ASCAP did not resolve the licensing issue. It just
put it on the table.

Many hotel and restaurant owners promptly told their musicians to only
play non-ASCAP tunes. Soon the trade magazine Variety was filled with
advertisements for "tax free" music. Motion picture and vaudeville house
owners also resisted, and as use of non-ASCAP music spread, some ASCAP
members got so worried they resigned.

Meanwhile, Herbert was losing his Shanley's suit. Court after court
supported Shanley's argument that since it was not charging patrons
anything extra to hear music, that music was not being "performed for

But on Jan. 22, 1917, Supreme Court Justice Oliver Wendell Holmes ruled
all those other courts were wrong.

"If rights are infringed only by a performance where money is taken at
the door, they are very improperly protected," wrote Holmes. "The
performances... are part of a total for which the public pays.... If
music did not pay, it would be given up. If it pays, it pays out of the
public's pocket.... The purpose of employing it is for profit, and that
is enough."

It would still take years for the nuts and bolts of licensing to be
sorted out and fully resolved.

But now it was just a question of when and how. When Shanley's struck up
"Sweethearts" that April Fools' Day, it had handed ASCAP the winning

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