Democracy of Sound (10 page)

In its time, the
Rag
strove to be “strictly for, by and about collectors,” and featured in-depth articles on its members, such as Hammond, “Dean of the Swing Critics,” and Wilder Hobson.
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The portraits show that the Hot Record Society crowd hailed from prestigious schools and thought of itself as an elite of music lovers. William Russell had studied classical violin in Chicago and taught music before becoming obsessed with hot music.
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He was also an accomplished avant garde composer, whose work influenced John Cage. Of Hobson, Frank Norris observed that “he had the most inclusive collection of jazz records”—in 1929, before the collecting craze got into full swing—though it was hard to say whose collection was best since “a lot of jazz philatelists have muscled into the tribe.”
⁴³

Writers in the
Rag
scorned mainstream critics, sometimes contrasting their own views with the ignorant pronouncements of other music reviewers.
⁴⁴
At the same time, they disdained pedantic terminology and impenetrable jargon in the discussion of music, lending a populist air to an otherwise elitist enterprise. The Society’s first bulletin proclaimed its pursuit of a middle path between snobbery and populism: “We will choose to reprint discs that are distinguished both by greatness of performance and by rarity, leaving the corn to the hillbillies and the more accessible hot records to the assiduousness of individual collectors.”
⁴⁵

This statement rings with the self-assurance that characterized the collectors’ division of jazz music between good and bad, legitimate and illegitimate. The white critics and collectors of the Hot Record Society sought to perpetuate recordings that they considered to be worthwhile, and they could use their status and resources to impose particular standards of value on the work of some African American musicians. In this sense, HRS served as a cultural gatekeeper as much as the record company that neglected to keep a certain recording in print. What the Society chose to copy and distribute would continue to be available, while music that did not meet their standards would succeed or founder according to the fortunes of the marketplace. Hammond praised both the little-known performers of blues, gospel, and jazz and bigger stars, such as Benny Goodman and Billie Holiday, with whom he had commercial interests as a producer.
⁴⁶

The Problem with Pop

Copying records in relative obscurity, collectors and small bootleg labels could carry on without bothering anyone too much. But what happened when people copied and distributed popular music? The rise of radio in the 1920s sparked a number of disputes over how recorded music could be legitimately reproduced. Radio was, after all, another way of replicating sound, just like a piano roll or a home disc engraver. When Americans experimented with the medium as a means for broadcasting, no one was certain what kind of programming would dominate—the reading of news, the playing of phonograph records, the live performance of music, or something else. Some businesses even set up stations for the sole purpose of advertising their own products and services.
⁴⁷
Meanwhile, record companies, musicians, and songwriters could not decide whether the new radio stations would benefit them as a means of promoting their goods and services, or merely profit from the use of their works. As record sales plummeted during the Great Depression and competition with free music on the radio increased, the question became especially acute.

Music publishers were the quickest to take action, ever mindful of those who would exploit their written music for free. Victor Herbert joined with other artists to form the American Society of Composers, Authors, and Publishers (ASCAP) in 1914, aiming to regulate the use of musical compositions in places like stores and restaurants. In the 1917 case
Herbert v. Shanley
, the Supreme Court ruled that composers were entitled to remuneration from commercial establishments that played recordings of their compositions to entertain and entreat customers. The precedent permitted ASCAP to demand that any station airing songs written by its members had to pay for licenses, just like commercial establishments such as stores or restaurants where music was played.
⁴⁸

Some smaller stations ignored the demands, but most eventually acquiesced. The majority of airtime in the early days of broadcasting was given over to live performers rather than recordings, an arrangement that pleased many parties; before the invention of electrical recording improved the sound quality of phonographs in the late 1920s, records sounded significantly worse on the air than live performances. Concerts provided a more abundant, fluid supply of music than discs, which typically contained, at most, four minutes of music on each side, could offer. Stations and hotels collaborated to turn performances into major events, drawing listeners both at home and in person.
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And, finally, performing live on the air provided musicians a potentially lucrative opportunity to play regularly and gain an audience. For many performers in the 1920s and 1930s, phonograph sales and radio performance were two separate streams of income.
⁵⁰

It remained for a 1940 ruling to address the unclear status of sound recordings on the air. Common law had long provided creators with a de facto copyright for their unpublished works that protected them from appropriation prior to their release to the public. Only published works could be formally registered for federal copyright protection. The definition of “publication,” though, was unclear. Recording a performance and pressing it as a record for sale to the public would seem to constitute publication, just as much as printing and selling a novel in the marketplace. But was a radio broadcast of a performance a publication of it? Did the artist forgo his “common law copyright”—his right of ownership for works that had not yet been distributed to the public—when a disc was pressed or a performance was broadcast? These questions emerged with the large-scale dissemination of sound through the new medium of radio, and neither the jurisprudence of music nor the legal negotiations of the songwriters through ASCAP addressed the curious status of sound.
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The bandleader Paul Whiteman won riches and fame by domesticating jazz for white audiences, and his opposition to having his records played on the air raised important questions about who owned recorded sound and how it could be reproduced. Some record manufacturers had for years marked discs with labels like “Not licensed for Radio Broadcast” or “Licensed … only for Non-Commercial Use on Phonographs in Homes.”
⁵²
They believed that the consumer who purchased a product with these provisos attached was bound by a license to use the record accordingly. Like record piracy, though, radio could make a recorded performance available to the public without the permission of the original artist or production company. Around 1937, WBO Broadcasting purchased several RCA recordings of Whiteman’s orchestra, and subsequently aired them on the New York station WNEW, despite the fact that the record’s label declared, “Only For Non-Commercial Use on Phonographs in Homes. Mr. & Original Purchaser Have Agreed This Record Shall Not Be
Resold Or Used For Any Other Purpose.”
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Whiteman had recorded for RCA under several contracts; for some of the recordings, the bandleader had signed all his rights over to the record company, but a later contract stipulated that he reserved the right to determine whether his performances would be broadcast.
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RCA and Whiteman sued WBO in 1939, alleging that by reproducing the works on the radio without permission, the broadcaster had violated their property rights in the recordings.

Did either a record company or a performer have any right to control how others used a sound recording in the absence of federal copyright protection for such a work? The District Court for the Southern District of New York ruled in 1939 that even though Whiteman had signed over whatever rights he might have to the recording company, he and RCA were still entitled to enjoin the broadcasts on the grounds of unfair competition. “It is evident,” Justice Vincent Leibell stated, “that the complainant and the broadcasting stations using complainant’s records are competitors in the business of public entertainment.”
⁵⁵
In other words, the radio broadcast of the record competed with RCA’s sale of the disc as well as Whiteman’s efforts as a recording artist and live performer.

Everyone had a reason to dispute the decision. WBO Broadcasting did not believe that it was unfairly competing with either the record company or Whiteman by broadcasting the records. The ruling undermined RCA’s claim of ownership of the recording, because the court concluded that the record label had not made any creative contribution to the work. “The well-known manufacturers of phonograph records use the same apparatus and methods,” Leibell wrote. “The average person could not tell by listening to the finished record which company made the record or which musical director supervised its recording or who manipulated the dials, arranged the microphones or handled the other mechanical devices used in getting the physical recording.”
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And Whiteman was not satisfied, because the court decided that he did not own his performance—even if the radio station’s use of the record amounted to unfair competition with his own products and services.
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In other words, the district court ruling held that the broadcaster was freeloading on Whiteman and RCA’s work, without recognizing any property right for the producers of the recording.

All the plaintiffs and defendants appealed to the US Court of Appeals for the Second Circuit, where Justice Learned Hand rejected the ideas of unfair competition
and
property rights in recorded sound. If the record was, in the constitutional sense, a “writing” that could be protected by copyright, but Congress had consciously chosen
not
to include it in the law, Hand did not believe it was his place to create a new right of ownership.
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Hand observed that cases like
Whiteman
tended to inch the scope of property rights outward, and he drew near to the term “intellectual property” long before it became commonplace: “This right has at times been stated as though it extended to all
productions demanding ‘intellectual’ effort.”
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All workers who were involved in the making of a record had a stake in the case, Hand said; yet he cast doubt on the notion, which would become more accepted in later years, that the technical production of the recording itself deserved protection by the state. “For the purposes of this case we shall assume that it covers the performances of an orchestra conductor,” Hand wrote, “and—what is far more doubtful—the skill and art by which a phonographic record maker makes possible the proper recording of those performances upon a disc.”
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Both the conductor and the technician on a phonograph recording contributed in some way to the creation of a distinctive work:

It is only in comparatively recent times that a virtuoso, conductor, actor, lecturer, or preacher could have any interest in the reproduction of his performance. Until the phonographic record made possible the preservation and reproduction of sound, all audible renditions were of necessity fugitive and transitory; once uttered they died; the nearest approach to their reproduction was mimicry. Of late, however, the power to reproduce the exact quality and sequence of sounds had become possible, and the right to do so, exceedingly valuable; people easily distinguish, or think they distinguish, the rendition of the same score or the same text by their favorites, and they will pay large sums to hear them.
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As Hand recognized, the recording of a performance was an invention apart from the composition upon which it was based. There were things about a particular performance that listeners loved and would pay good money to hear. But lacking the guidance of Congress, he asked, how could the court parse the qualities that a record producer, a singer, or a session musician gave to a recording? The judgment was too subjective and political for a court to make.

RCA based its argument partly on the
INS
precedent, but the court did not agree that playing the records on the radio was the same as one news organization copying the “hot” stories that another went to the trouble of collecting. Indeed, Hand refused to turn that ruling into a general rule, insisting that it only applied to the specific situation of publishing news in a national market. “That much discussed decision really held no more than that a western newspaper might not take advantage of the fact that it was published some hours later than papers in the east, to copy the news which the plaintiff had collected at its own expense,” Hand wrote. “In spite of some general language it must be confined to that situation; certainly it cannot be used as a cover to prevent competitors from ever appropriating the results of the industry, skill, and expense of others.”
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Ideas, he argued, were the basis of all creative effort and their use could not be
overly restricted because one person complains that his products were used in an unintended way. In any case, the court ruled that extending protection was always a matter of “more or less,” which was best measured by Congress—and the courts should err on the side of less restriction, rather than more, in cases that Congress had not addressed.