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MMD > Archives > March 2001 > 2001.03.09 > 01Prev  Next

History of Mechanical Music License
By Tim Baxter

I am reluctant to correct the learned editor of this outstanding
publication, but in the article in 010307 MMD ["Free Music on the
Radio"] Robbie states:

>[ Earlier courts ruled that piano rolls (and hence MIDI files) of
>[ songs fall under the same rules as every other recording medium.

In fact, "courts" held just the opposite.  The Supreme Court decision
in White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1 (1908), held
that music on piano rolls was _not_ protected by copyright law as it
then existed.

The White-Smith case makes fascinating reading for any player piano
enthusiast.  The Plaintiff, a music publishing company, alleged that
the Defendant, Apollo Company (makers of Art-Apollo pianos, etc.) had
infringed the copyright on two songs owned by the Plaintiff ("Little
Cotton Dolly" and "Kentucky Babe") by making piano rolls of them.
Attorneys for the Connorized and Rudolph-Wurlitzer Company also
submitted briefs.

The Court's reasoning was that player piano rolls were not "music"
because most people could not read perforations as musical notation,
or otherwise glean  musical ideas from the roll.  The Court quoted
favorably the following language from certain lower court decisions:

"I cannot convince myself that these perforated strips of paper are
copies of sheet music within the meaning of the copyright law.  They
are not made to be addressed to the eye as sheet music, but they form
part of a machine.  They are not designed to be used for such purposes
as sheet music, nor do they in any sense occupy the same field as sheet
music.  They are a mechanical invention made for the sole purpose of
performing tunes mechanically upon a musical instrument."

The decision accepted a similar argument as regarding phonograph

"We cannot regard the reproduction, through the agency of a phonograph,
of the sounds of musical instruments playing the music composed and
published by the appellants, as the copy or publication of the same
within the meaning of the act.  The ordinary signification of the words
'copying,' 'publishing,' etc., cannot be stretched to include it.

"It is not pretended that the marks upon the wax cylinders can be made
out by the eye or that they can be utilized in any other way than as
parts of the mechanism of the phonograph.  Conveying no meaning, then,
to the eye of even an expert musician, and wholly incapable of use save
in and as a part of a machine specially adapted to make them give up
the records which they contain, these prepared wax cylinders can
neither substitute the copyrighted sheets of music nor serve any
purpose which is within their scope.  In these respects there would
seem to be no substantial difference between them and the metal
cylinder of the old and familiar music box, and this, though in use at
and before the passage of the copyright act, has never been regarded as
infringing upon the copyrights of authors and publishers."

In response to this decision, and the Court's having practically
invited legislative intervention in its decision -- i.e., "The statute
has not provided for the protection of the intellectual conception
apart from the thing produced, however meritorious such conception may
be, but has provided for the making and filing of a tangible thing,
against the publication and duplication of which it is the purpose of
the statute to protect the composer. ... It may be true that the use of
these perforated rolls, in the absence of statutory protection, enables
the manufacturers thereof to enjoy the use of musical compositions for
which they pay no value.  But such considerations properly address
themselves to the legislative, and not to the judicial, branch of the
government.  As the act of Congress now stands we believe it does not
include these records as copies or publications of the copyrighted
music involved in these cases. -- Congress enacted the Copyright Law
of 1909 providing for the payment of a "mechanical" (i.e., meaning
originally, player piano, but also applied to phonograph recordings)
license fees to the copyright owner when a song is recorded and
"published" on a mechanical medium.  Ultimately _performance_ royalties
were statutorily enacted, whereby a royalty is paid to the copyright
owner when a song is played in public or on the radio.

Thus the Courts, far from offering copyright protection for music
recorded on player pianos, actually stood in the way of such
protection.  Congress, rather, enacted new copyright protections
to encompass the new recording technologies.

Finally, please also note that inasmuch as phonographs and player
pianos were invented and began being sold to the public at roughly the
same time (late 19th - early 20th centuries), the same jurisprudence
has always applied to both -- a fact indicated in the White-Smith
decision.  Thus, contrary to Robbie's statement, there was never any
possibility that courts would have opined that copyright protections
had been expanded from other media and were "now applied" to player
piano rolls -- player pianos and radio _were_ the first recording

The White-Smith decision can be found on line at:


Timothy Baxter
Atlanta, Georgia

 [ I apologize to our readers; I was thinking of the 1972 copyright
 [ rulings.  I'm glad you wrote to tell us the true history, Tim.
 [ It certainly is fascinating!  -- Robbie

(Message sent Fri 9 Mar 2001, 04:17:31 GMT, from time zone GMT-0500.)

Key Words in Subject:  History, License, Mechanical, Music

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