Sunday, April 5, 2015

Weighing In on Copyright

by John Philip Sousa
Anent the Blurred Lines controversy, an excerpt from Sousa's (possibly prescient) rant The Menace of Mechanical Music, Appleton's Magazine 8 (1906), 278–84.

And now a word on a detail of personal interest which has a right to be heard because it voices a claim for fair play, far-reaching in its effects beyond the personal profit of one or many individuals. I venture to say that it will come as an entire surprise to almost every reader to learn that the composers of the music now produced so widely by the mechanical players of every sort draw no profit from it whatever. Composers are entirely unprotected by the copyright laws of the United States as at present written on the statute books and interpreted by the courts. The composer of the most popular waltz or march of the year must see it seized, reproduced at will on wax cylinder, brass disk, or strip of perforated paper, multiplied indefinitely, and sold at large profit all over the country, without a penny of remuneration to himself for the use of this original product of his brain.

Frederick Strothmann
It is this fact that is the immediate occasion of the present article, for the whole subject has become acute by reason of certain proposed legislation in Congress at Washington. The two phases of the subject—fair play to music and fair play to musicians—are so naturally connected that I have not hesitated to cover the legal and the artistic sides of the question in a single discussion.

 A new copyright bill was introduced in Congress at the last session, a joint committee met on June 6th, to hear arguments on the bill as presented, and the following paragraph was cause for lively discussion on the part of the various talking-machine interests and composers represented:

Paragraph (G) of Section I, which provides “that the copyright secured by this Act shall include the sole and exclusive right to make, sell, distribute, or let for hire any device, contrivance, or appliance especially [283] adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this Act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work.”

I was among those present, and became particularly keen on the efforts of opposing interests to impress upon the committee by specious argument and fallacious interpretation that the composer of music had no rights under the Constitution that they were bound to respect; and that remedial legislation was wholly out of the question until the Constitution had first been amended.

One gentleman went the length of declaring that he would never have worked out his reproducing apparatus, had he not felt confident that the Constitution gave him the right to appropriate the brightest efforts of the American composer, and he voiced the belief that any act giving the composer ownership in his own property would be most unconstitutional.

Asked if he claimed the right to take one of my compositions and use it in connection with his mechanical device without compensation to myself, his unselfish reply was: “Under the Constitution and all the laws of the land, I say Yes, decidedly!”

Asked if he was not protected in his patents, his answer was promptly in the affirmative, but he seemed wholly unable to grasp the proposition that a composer should ask for similar protection on his creative work.

Asked finally if he desired the Constitution amended, he replied magnanimously: “No, sir, I want the Constitution to stand as it is.”

Of course it must not be overlooked that in the United States Circuit Court of Appeals a case has just been decided adversely to the composer’s rights in the profits accruing from the use of his compositions on the talking and playing machines, but this case awaits final adjudication, on appeal, in the United States Supreme Court. Judges Lacombe, Coxe, and Townsend rendered a decision as follows:
We are of the opinion that a perforated paper roll, such as is manufactured by defendant, is not a copy of complainant’s staff notation, for the following reasons:
 It is not a copy in fact; it is not designed to be read or actually used in reading music as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of evidence, even if true, would establish merely a theory or possibility of use, as distinguished from an actual use. The argument that because the roll is a notation or record of the music, it is, therefore, a copy, would apply to the disk of the phonograph or the barrel of the organ, which, it must be admitted, are not copies of the sheet music. The perforations in the rolls are not a varied form of symbols substituted for the symbols used by the author. They are mere adjuncts of a valve mechanism in a machine. In fact, the machine, or musical playing device, is the thing which appropriates the author’s property and publishes it by producing the musical sounds, thus conveying the author’s composition to the public.
May I ask, does this machine appropriate the author’s composition without human assistance? Is the machine a free agent? Does it go about to seek whom it may devour? And if, as quoted above, the machine “publishes it,” is not the owner of the machine responsible for its acts?

Is a copyright simply represented by a sheet of music?  Is there no more to it than the silent notation? The little black spots on the five lines and spaces, the measured bars, are merely the record of birth and existence of a musical thought.  These marks are something beyond the mere shape, the color, the length of the pages.  They are only one form [284] of recording the coming into the world of a newly fashioned work, which, by the right of authorship, inherent and constitutional, belongs to him who conceived it.  They are no more the living theme which they record than the description of a beautiful woman is the woman herself.

Should the day come that the courts will give me the absolute power of controlling my compositions, which I feel is now mine under the Constitution, then I am not so sure that my name will appear as often as at present in the catalogues of the talking and playing machines.

Evidently Judge Abinger, of the English bar, believes in the doctrine of substance, for he says:

The most unlettered in music can distinguish one song from another; and the mere adaptation of the air, either by changing it to a dance, or by transferring it from one instrument to another, does not, even to common apprehension, alter the original subject.  The ear tells you that it is the same.  The original air requires the aid of a genius for its construction; but a mere mechanic in music can make the adaptation or accompaniment.  Substantially the piracy is where the appropriated music, though adapted to a different purpose from that of the original, may still be recognized by the ear.

 Again the English court says:

The composition of a new air or melody is entitled to protection; and the appropriation of the whole, or of any substantial part of it, without the license of the author, is a piracy, and the adaptation of it, either by changing it to a dance, or by transferring it from one instrument to another, if the ear detects the same air, in the same arrangement, will not relieve it from the penalty.

The section of the Constitution on which my whole legal contention is based provides:

 The Congress shall have power to secure for limited time to authors and inventors the exclusive right to their respective writings and discoveries.

And my claim is, that the words “exclusive” and “writings,” particularly the latter, are so broad in their meaning that they cover every point raised by existing copyright laws, even to the unauthorized use of musical compositions by mechanical-reproducing apparatuses, and all this because these two words deal, not alone with the letter, but with the spirit as well.

 But let the ambiguities in the text of law be what they may; let there be of legal quips and quirks as many as you please, for the life of me I am puzzled to know why the powerful corporations controlling these playing and talking machines are so totally blind to the moral and ethical questions involved.  Could anything be more blamable, as a matter of principle, than to take an artist’s composition, reproduce it a thousandfold on their machines, and deny him all participation in the large financial returns, by hiding back of the diaphanous pretense that in the guise of a disk or roll, his composition is not his property?

Do they not realize that if the accredited composers, who have come into vogue by reason of merit and labor, are refused a just reward for their efforts, a condition is almost sure to arise where all incentive to further creative work is lacking, and compositions will no longer flow from their pens; or where they will be compelled to refrain from publishing their compositions at all, and control them in manuscript?  What, then, of the playing and talking machines?

Sousa in 1900
Later in 1906 John Philip Sousa (18541932) appeared before the joint Congressional committee on copyright reform, famously arguing that “These talking machines are going to ruin the artistic development of music in this country. ... The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.”

The New York Times of 8 December 1906 reported of the previous day that “With William Dean Howells, Edward Everett Hale, Thomas Nelson Page, and a number of other authors, [Mark Twain] appeared before the committee this afternoon. The new Copyright bill extends the authors' copyright for the term of his life and for fifty years thereafter. It is also for the benefit of artists, musicians, and others, but the authors did most of the talking. F. D. Millet made a speech for the artists, and John Philip Sousa for the musicians.”

Appleton's Magazine (as it was called at the time) was a literary journal published by D. Appleton & Co., New York, from 1869 to 1909.

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