In 1897, Congress gave composers a public performance right — that is, the right of the copyright owner to collect a fee for public performance. This right was difficult to enforce, because hundreds of dance halls and restaurants all over the country had musicians giving unauthorized performances of music, and it was impractical for the copyright holders to collect fees for so many performances. What is more, the 1909 copyright law specified that such performances had to be “for profit” if royalties were to be collected for them. In 1913, nine composers and music publishers formed ASCAP, the American Society of Composers, Authors, and Publishers, to come up with a way to protect the performing right. Once again, a court case led the way: in 1914, ASCAP filed two suits, against a hotel and a restaurant, for performing music by John Philip Sousa and Victor Herbert. The defendants contended that because the patrons had not paid for the music, the performance was not for profit, and the lower courts agreed. But an appeal to the Supreme Court overturned those decisions in 1917. The Court argued that the performances were part of the experience in the restaurants, for which the patrons were paying. “If music did not pay it would be given up,” the decision said. The copyright owners were thus entitled to their share.
This point having been established, ASCAP organized a royalty collection and distribution system. Composers, authors and publishers became members of ASCAP, and gave the society the right to license non-dramatic performances of their works. (This excluded “grand rights,” or the use of the work in a theatrical performance, a right that was retained by the composer, author and/or publisher.) ASCAP issued a blanket license to dance halls, hotels, restaurants, and other entities that performed live music, giving them the right to play anything in its catalogue. ASCAP distributed royalties to its members based on a formula of the relative popularity of their works that was derived from sampling the licensees.
Nowadays, the three performing rights societies (ASCAP, BMI and SESAC) issue various types of licenses. Other entities (such as radio) have been added to those who must license the music they use, and the new ones just like the old ones continue to resist it. Most music consumers would really rather not pay for music — consider how fans justify the circulation of pirated recordings — and don’t see why they should have to. The intermediaries, from taverns to TV stations, still try to avoid it.
Intellectual Property: Whose Song is it Anyway?
by Heidi Waleson