Music Copyright

Infringement or Fraud

On February 13th, 1914, at the Hotel Claridge in New York, a group of prominent, visionary music creators founded the American Society of Composers, Authors, and Publishers  (ASCAP).   Among the charter members were Irving Berlin, Victor Herbert, Jerome Kern, Louis A. Hirsch, Rudolf Friml, and John Philip Sousa.  The original purpose of the organization was to protect the copyrighted musical compositions of its members, who were mostly songwriters and publishers associated with New York City's Tin Pan Alley.  Fundamentally, the songwriters wanted to be compensated when others used their intellectual property. 

While it is both understandable, and quite reasonable, to expect that composers should be compensated for their creative talents, the inclusion of publishers demonstrates that the organization’s purposes were flawed from the very beginning.  The publishers did bear the risk and expense of printing and distributing the sheet music, but they were not “creating” anything.  If a song was a hit, the publisher more than recouped the investment.  If the song “flopped”, that was the risk they ran.  But, the contracts were always written to favor the publisher over the songwriter, the same way recording contracts today favor the record label over the songwriter and the performer.  At the height of his popularity in the 40s, a 78 rpm of a Glenn Miller song sold for 35 cents.  Miller received 2 cents per record sold.

In the days before radio, when the only method of distribution was sheet music, and when a score retailed for 25 cents, the songwriter might get 3 cents.  If he was black, cut that in half.  That's why Irving Berlin and some others formed their own publishing companies.  And, it's one of the reasons publishers got included when ASCAP was formed,  By being included in ASCAP, publishers put themselves in a position to earn money not rightfully theirs.  That arrangement continues to this day.

This article focuses on ASCAP because it claims control of the copyright to most of the songs written during the Tin Pan Alley era.  Broadcast Music, Inc. (BMI) didn’t come into existence until 1940, as a result of the “Great ASCAP War”.  The advent of radio in the 1920s brought an important new source of income for ASCAP.  Radio stations originally only broadcast performers live, with the performers working for free.  Later, performers wanted to be paid, and recorded performances became more prevalent.  ASCAP started collecting license fees from the broadcasters.  The songwriters and publishers collected royalties, but the performers were left out.  In fact, the performer would have to pay ASCAP a fee in order to record a copyrighted song.   Between 1931 and 1939, ASCAP increased royalty rates charged to broadcasters more than 400%.

In 1940, when ASCAP tried to double its license fees again, radio broadcasters formed a boycott of ASCAP and founded a competing royalty agency, BMI.  During a ten-month period lasting from January 1 to October 29, 1941, no music licensed by ASCAP (1,250,000 songs) was broadcast on NBC and CBS radio stations.  Instead, the stations played regional music and styles (like rhythm and blues or country) that were in the public domain and had been traditionally disdained by ASCAP.  "Jeanie with the Light Brown Hair", an 1854 song, was a notorious beneficiary of the ASCAP boycott.  According to Time Magazine, "So often had BMI's Jeannie  With the Light Brown Hair been played that she was widely reported to have turned grey."  When the differences between ASCAP and the broadcasters were resolved in October 1941, ASCAP agreed to settle for a lower fee than they had initially demanded.

Prior to the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship.  Irving Berlin, who lived to the age of 101, was very active in lobbying for an extension.  He did not want to lose rights to the songs he wrote in the 30s and 40s.  The 1976 Act extended the term for works copyrighted before 1978 that had not already entered the public domain, from 28 years to 47 years, giving a total term of 75 years from their date of publication.  Inasmuch as the original purpose of music copyright was to compensate the songwriters of Tin Pan Alley, let’s take a look at some examples of songs written during that period.  

Walter Donaldson was a prolific Tin Pan Alley songsmith, with a career spanning four decades.  He’s perhaps the most famous Tin Pan Alley songwriter whose name no one knows.  He wrote such memorable hits as “Mammy (1921)”, “Carolina in the Morning (1922)”, “Yes Sir, That’s My Baby (1925)”, and “My Blue Heaven (1927)”.

Donaldson died in 1947.  Following the “life of the author plus 50 years” formula that existed prior to the 1976 Act, “Mammy” would have entered the public domain in 1971, “Carolina in the Morning” in 1972, “Yes Sir, That’s My Baby” in 1975, and “My Blue Heaven” in 1977.  With the extension passed in that Act, those dates extended the copyright of “Mammy” to 1996, “Carolina in the Morning” to 1997, “Yes Sir, That’s My Baby” to the year 2000, and “My Blue Heaven” to 2002

However, in 1998, Congress passed the Sonny Bono Copyright Term Extension Act, also known as the Mickey Mouse Protection Act, principally because the Disney Corporation didn’t want to lose the rights to Mickey Mouse, who first appeared in 1928.  Walt Disney died in 1966.  Again, using the “life of the author plus 50 years” computation, Mickey was to enter the public domain in 2016.  But, if Mickey was considered a work of corporate authorship, he’d become a free person in 2003.  Under this Act, only "Mammy" and "Carolina in the Morning" are now in the public domain, having been published prior to 1923.

The 1998 Act extended these terms to the life of the author plus 70 years, and for works of corporate authorship to 120 years after creation, or 95 years after publication, whichever end is earlier.  The Act set an arbitrary date of January 1, 1923 as the "dividing line" between public domain and copyrighted works.  Under the Act, works published in 1923 or afterwards, that were still protected by copyright in 1998, will not enter the public domain until 2019 or later.   Mickey Mouse, specifically, will not be a public domain work until 2024.  As that date nears, it's quite likely that Disney will go back to Congress, petitioning for still another extension.

Following passage of the Act in 1998, and with the spread of the Internet and the proliferation of music websites, ASCAP and the Recording Industry Association of America (RIAA) assumed the role of “Copyright Police”, aggressively going after and suing the owners of such sites.  Perhaps the most famous case was that of Napster,  created by Shawn Fanning.   Napster provided a centralized server that indexed the files, and carried out the searches.  Individual files, however, remained on the hosts' computers and were transferred directly from peer to peer.  Napster let users search across all users' shares.

RIAA filed suit against Napster in December 1999.  Said Cary Sherman, senior executive vice president and general counsel of the RIAA,  "We love the idea of using technology to build artist communities, but that's not what Napster is all about.  Napster is about facilitating piracy, and trying to build a business on the backs of artists and copyright owners."

Napster claimed that its software was developed to save users the time consuming effort of wading through site after site to find a particular artist.  Napster warned its users against transmitting copyrighted material.  Also in its defense, Napster did not host any content.  They simply offered a trading network and did not monitor what files were being shared.   This was a key point in its defense, as the lawsuit amounted to shooting the messenger over the message.   A similar RIAA suit against Diamond's Rio player was thrown out of California court on roughly the same premise.

But the point of the RIAA's lawsuit was less about damages and more about control.  Funded by the major music labels, the RIAA had very deep pockets.  For startup companies like Napster, or simply small organizations of music hobbyists,  any form of litigation not only sucks up money, but distracts them from normal business.  A win in the courts could be pyrrhic if the case dragged on long enough.

That's why litigation, even just the fear of litigation, becomes an effective tool in regulating smaller upstart companies.  It is an effective business technique for established organizations  that may have been caught flat-footed by technology changes and now must play catch up. The music industry is certainly not the only industry to use this tool.  In fact, in the world of corporate hegemony, this is business as usual.

Precisely what is “protected” in a song?  It’s not the title.  Song titles cannot be copyrighted.  A songwriter might seek to claim infringement for the use of lyrics.  But, unless a significant part of the lyrics are used and are being sung to the same melody, that case won’t likely go very far.  No, it’s the melody that makes the song and that is what the copyright law protects.  Take the case of Make ‘Em Laugh featured in the 1952 movie Singing in the Rain.  That melody is almost identical to Cole Porter’s Be a Clown, written for the 1948 film The Pirate.  In fact, when Irving Berlin heard it during the filming of Singing in the Rain, he commented on it, warning Gene Kelley that Porter might make a fuss.  He didn’t.

What about arrangements?  They are deemed derivative works.  An arranger must get permission of the copyright holder to do an arrangement and must pay royalties to record or perform the arrangement for money.  Like a song title, an arrangement cannot be copyrighted by the person doing the derivative work.  The rights to the song itself remain with the original songwriter.

Perhaps the most egregious example of the scam ASCAP is running is the case of the song Red River Valley.  It highlights the lack of integrity found in the music industry going all the way back to the 1920s and 30s.  This is truly a folk tune and the melody is easily traceable back to the mid-1800s. In an article entitled “The Red River Valley Re-examined” in Western Folklore Journal  (Vol. 23, No. 3, July 1964), folklore historian Edith Fowke traced the melody at least back to In the Bright Mohawk Valley, which James J. Kerrigan published in 1896.  But,  Fowke also found several indications that the song was sung in Canada during the North-West Rebellion of 1869, commonly known as the Red River Rebellion.  In the Canadian version, it referred to the Red River that flows into Lake Winnipeg.  It told of the love of a French half-breed girl for one of the British soldiers who came west to suppress the uprising.

In one of its earliest appearances in a folk song collection (The American Songbag, 1927), Carl Sandburg noted, “The popular song ‘In the Bright Mohawk Valley’ went through changes in the seaboard and mountain states of the South.  It became ‘The Red River Valley’.  It went West and became the cowboy love song, the end line speaking of ‘the cowboy that’s waiting for you’ or ‘the half-breed that’s waiting for you.”   No one knows where, when, or how that melody originated.  Simply writing down the notes of a folk tune does not give anyone the right to copyright such a melody.  This is exactly like another folk tune, Shenandoah, sometimes recognized as Across the Wide Missouri.  Origins of that song go back to the 1700s.  Fortunately, no one ever wrote down the notes and claimed copyright status for that song.  It's in the public domain.

In ASCAP’s “Repertory”, their library or catalog of songs to which they claim copyright, there are no less than 169 listings of Red River Valley.  One of them lists the song having been written by James J. Kerrigan.  But, as stated, the song Kerrigan wrote, with the same melody, was entitled In the Bright Mohawk Valley.  Even if it had been written as Red River Valley, its 1896 publication date places it in the public domain.  But, for this version of the song, ASCAP claims 50% control, with the other 50% going to TCF Music Publishing, Inc. in California.  It’s unknown exactly when Kerrigan died.  But, this begs the question of exactly to whom ASCAP is paying royalties for this song?

Then, there’s the version in the Repertory which says that the Writer is UNKNOWN.  Still, ASCAP “controls” 50%, with the other 50% going to a company called TROCO.  If the songwriter is UNKNOWN, which is actually the case for this old folk song, to whom are royalties being paid?  Finally, there’s a listing which shows the Writer as PUBLIC, yet, again, ASCAP controls 50%, with the other 50% going to Twelvemonth Music. 

In February 2018, ASCAP filed suit against The Dam Bar, a tiny establishment in Port Angeles, WA, for playing music without permission.  Other lawsuits filed that month west of the Mississippi River were against The Savoy Entertainment Center, Inglewood, Calif., which hosts the likes of comedians David Chappelle and Cedric the Entertainer; the Time-Out Sports Bar & Grill in Las Vegas, Nev., which paid out $2.68 million to gamblers in 2017, according to its website; and the 5-D Steakhouse & Lounge in Yorktown, Texas, population 2,092.

ASCAP’s complaint against Dam Bar owner Elda L. Brandt and her daughter, former co-owner Jennifer L. Landon, was filed in federal District Court in Tacoma under the federal Copyright Act of 1976, which prevents the unauthorized copying of music.  The lawsuit seeks damages, as outlined in the Copyright Act for infringement actions, of between $750 and $30,000 for the unlicensed, unpermitted performance of each of four songs, or $3,000 to $120,000 in total damages, along with court costs and attorney’s fees.  ASCAP alleges the songs were played on April 19, 2017, during karaoke performances. A person from a private investigative firm who was at the bar documented The Dam Bar patrons singing the songs.  Although ASCAP claims they had no idea the investigator would just show up on Karaoke night, such claim is ludicrous.  ASCAP has been doing this for years, playing GOTCHA.

The Dam Bar’s karaoke performers sang the country hits “Don’t Close Your Eyes” and “The Dance,” recorded by Garth Brooks; “Monday Morning Church,” recorded by country music star Alan Jackson, and “Summer Nights,” from Grease.  "The many unauthorized performances at The Dam Bar include the performances of the four copyrighted musical compositions upon which this action is based,” the lawsuit says.

Although it seems a bit unseemly that ASCAP actually sends private investigators around the country, seeking out establishments to intimidate, in these cases, ASCAP is simply doing what it was originally founded to do, protect the intellectual property rights of the copyright holder.  For anyone in the bar or restaurant business, it should be common knowledge that a license fee is required.  According to Jackson Wagener, ASCAP’s vice president of business and legal affairs, “Regardless of the source of the music, if a song is performed in public by a person in a commercial establishment, [the business] needs to have permission from the copyright owners.”

Based on The Dam Bar’s 96-person occupancy limit and the karaoke and live music that’s offered, the yearly license would be $912.  Rather than run the risk of bankruptcy fighting the lawsuit, if the bar owners simply charged patrons $1 each on Karaoke night, and Karaoke night was staged just one night per week, their yearly total could be $4,992, enough to pay the fee with profit left over.  Even if only an average of 20 people showed up for Karaoke night, the bar would bring in $1,040.  The bar owner's stubbornness, refusing even to respond to phone calls and letters, practically ensures bankruptcy.  It's fine to stand on principle, so long as one is standing on a solid surface.

In any event, let's get back to Tin Pan Alley music, the underlying subject of this entire piece.  Although going on 100 years old, this music is still with us, in such things as TV commercials and as background in movie soundtracks.  A few years ago, Travelers insurance used Irving Berlin's Blue Skies in a commercial.  For many years now, United Airlines has used George Gershwin's Rhapsody in Blue as its theme.

Although the estates, or descendants, of Berlin and Gershwin are still around to receive royalty payments, in most cases, there is no person alive today to whom ASCAP is paying royalties for songs written during the Tin Pan Alley era.  The Mickey Mouse Protection Act has been a windfall for ASCAP.  The original publishing companies of Tin Pan Alley no longer exist, although their catalogs may have been purchased by other publishers along the way.  But, the salient fact is that rights to most of the songs published between 1923 and 1930 are owned by publishing companies, who had no hand in the creative process of those songwriters.  The original, founding principle of ASCAP, to protect the intellectual property of songwriters, and to compensate them through royalty payments when other's use their work, is not being met.

ASCAP and the other publishers are simply pocketing the money, perpetrating a fraud on the American people.