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MMD > Archives > November 2001 > 2001.11.22 > 04Prev  Next

Copyrights & Performance Royalties
By Matthew Caulfield

Tim,  What your are describing in your posting to 011121 MMD
involves the question of performance royalties which might be owed
to the copyright holder of the original composition (or arrangement)
that underlies the music recorded on a roll or tape, or CD, or
phonograph record.

When you run a sound recording to produce music for your own private
enjoyment, or the enjoyment of a group from whose presence, you derive
no profit -- you don't owe anybody anything for that.  However, if you
play the same recording in a situation where you derive profit from
the performance, you owe a royalty to the copyright holder, *if* the
composition is still under copyright and not yet in the public domain.

ASCAP (American Society of Composers, Artists, and Publishers)
collects those fees via a blanket annual license, the cost of which
is based on their estimate of how much music you play and how much
profit you derive from the playing.  ASCAP then distributes the pot
to its composer members based on a formula they devise.  Courts have
upheld ASCAP's position that "profit" does not have to be in the form
of an admission charge specifically to hear the music, but can be --
and often is -- the intangible profit derived from something like
background music which enhances the public's enjoyment of your

All radio and television stations pay into ASCAP (or more likely BMI
(Broadcast Music Inc.), which does for that industry what ASCAP does
for other areas) for all music they play that is not in the public
domain.  I suppose all concert producers are also tapped by ASCAP,
unless the play Tchaikowski or Beethoven or other pre-1923 composers.

These fees are owed to the composers of the underlying musical
compositions, not to the makers of the recording medium used.  That's
why fees are owed even for live performances that involve no use of
any recorded medium.

The phrase "mechanical rights" which you mention is used in copyright
law only for the right of a recording producer to make and sell copies
of a recording -- the right to turn a musical composition into salable
mechanical form, if you will.

It is my belief that the copyright notice on a recording (disc, CD,
music roll, etc.) offers only this protection to the maker of the
recording: you may not legally make a further copy of that recording
without permission of the original maker.  Any rights to control or
profit from performance or further re-arranging of the underlying
musical composition remain with the original composer.

You ask about the legitimacy of the legal notices put by modern roll
recutters on their products.  That is a good question, one which, as
Robbie Rhodes explains in his contribution to 011121 MMD, is a can of
worms that would feed many lawyers for many days (if lawyers eat
worms).  The form of Play-Rite notice which you quote --

  "Warning:  This music roll is full protected by the Federal
   Anti-Piracy Act of 1972.  It is unlawful to copy from or make
   duplications of this roll in any form or manner whatsoever including
   transfer to disk or magnetic tape.  Play-Rite will strictly enforce
   our right against infringement."  --

is the one Play-Rite used before the Copyright Act of 1976 took effect,
superseding the interim Anti-Piracy Act of 1972.  Play-Rite now uses
a different wording having the same effect.  That effect is only to
prohibit duplicating the roll commercially.  I am sure that no court
would hold that making a tape or CD recording of the roll for private
use would infringe Play-Rite's copyright, however.

The basic question, though, is the one you ask: How did Play-Rite
acquire any copyrightable interest in the rolls it made merely by
copying original Wurlitzer rolls?  The word "merely" here admittedly
underrates the complexity of the technology Play-Rite uses to achieve
the copying.

I think maybe the Copyright Act of 1976 gives them a footing to claim
proprietary interest in their products.  However under the law prior to
1976 (or more surely prior to 1972, since I don't know the specifics of
the Anti-Piracy Act of 1972) I rather doubt that Wurlitzer's rights in
their original creations were devolved onto Play-Rite.  I understand
there was some litigation of the question, but the details are unclear
to me.

Wurlitzer's roll business went in 1946 to Allan Herschell Company,
then months later to T.R.T. Manufacturing Company, then in 1975 to
Doyle Lane.  The extant perforators and masters were eventually sold
to Play-Rite, then to Don Rand, then to the Herschell Carrousel Factory
Museum.  Most of this time Wurlitzer remained an active corporation,
until 1988 when it was sold to Baldwin Piano and Organ Co. for just
under $16 million.  The spun-off German branch, Deutsche Wurlitzer,
remains active today.  Some of these transfers were sales of equipment;
what rights went with what equipment to whom is unclear to me.

Play-Rite claims to possess a letter from Farny Wurlitzer, who died
in 1972, giving Play-Rite the rights to Wurlitzer rolls.  On the other
hand, I have heard that Q. David Bowers, in his conversations with
Farny, was told by Farny that anyone could do anything they wanted with
those rolls as far as Wurlitzer was concerned.

Federal law aside, there are doctrines of fair use and principles of
common law that come into play.  The situation is cloudy enough that
Play-Rite has been able to successfully prevent copying of its products
without permission -- which has proven not impossible to obtain.


Matthew Caulfield

(Message sent Thu 22 Nov 2001, 15:57:00 GMT, from time zone GMT-0500.)

Key Words in Subject:  Copyrights, Performance, Royalties

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