Nickels & Dimes: Music Publishing & It's Administration in the Modern Age

By Phil Hardy

Author Phil Hardy tells the astonishing story of music publishing with reference to key songwriters and publishers along the way. It is a fascinating account of the cataclysmic reversal of fortunes that reshaped the music industry forever.

• Language: English
• Publisher: Omnibus Press
• Release date: Mar 17, 2014
• ISBN: 9780857128775

Book preview

themselves.

Chapter 1

Laying The Foundations

When in 1886 the UK acceded to the Berne Convention for the Protection of Literary and Artistic Works, the French collection society SACEM hired agents to license and collect fees for the performance of copyrights of its members in the UK. There was no parallel attempt by UK music publishers to collect these much contested royalties when their copyrights were performed. The reason was the markedly different markets for music in Continental Europe and the UK (and the US). Cyril Ehrlich identifies this neatly: More than in any other country … music publishing in England depended on sales rather than performance.

In Europe, publishers saw the performance right as a significant revenue source. In contrast, UK and US music publishers saw any restrictions on what a person might do with a piece of sheet music he or she had bought as potentially harmful to sales. Commonly publishers included a note on the sheet music to the effect of This song may be sung in public without fee or licence. Moreover, since performers were commonly paid by publishers to perform specific songs, with a commendation on the title sheet that the song was As performed by …, seeking a royalty from such a performance was not considered productive. In contrast to Europe where writers had both status and a greater degree of control over their works, in the UK and US music publishers were far more powerful than the lyricists and composers they employed.

The source of this power in the UK/US market was the printing and distribution of far greater volumes of sheet music than in Europe. ‘Piano mania’ had taken hold in the UK and the US at the beginning of the twentieth century. In 1910, there were estimated to be 2m pianos in the UK, more than the combined total in France and Germany at the time. To supply the demand for music to play on these instruments some 20m sheet music copies were sold each year, with popular hits regularly selling over 200,000 copies and super-hits in excess of half a million. In the US, where in 1890 some 500,000 people were studying piano, sheet music sales were equally strong. Much of these sales derived from what was termed ‘standard music’, including both classical pieces and music written for marching bands and choirs. However, increasingly the majority of sales were ballads, written to be sung around the piano, which became known as ‘popular music’. Like the gramophone, which was soon to challenge the dominance of sheet music, the piano was an instrument that had to be regularly fed. And it was genteel. Feminine advice guides of the era encouraged women to take up the piano; to display a musical ability for the piano was seen as the mark of a refined woman and, along with her cooking and needlepoint skills, it would catch her a husband in no time. The piano also permitted women to respectably earn money, extending their job opportunities from family employed governesses to self-employed operators offering piano lessons.

In this environment, UK music publishers’ concerns lay not with the dubious-to-them new performing right guaranteed them in the 1911 Copyright Act, but rather the reduction of rampant sheet music piracy of American, Irish and domestic publishers.² The fact that such copyright infringement was not, until the Musical Copyright Act 1906, considered to be a criminal offence made their predicament worse and severely limited their powers of redress. Thus, for example, although in 1902–3 some 231 pirated titles were found and 460,000 pirated copies were seized by the police, of the 12 actions successfully launched by leading publisher William Boosey only two succeeded in recovering costs. In response to the high level of sheet music piracy, in April 1905 the 19 members of the Music Publishers’ Association (MPA), which had been established in 1881 to watch over the general interests of the music publishing trade and to communicate with the proper authorities on all matters connected with copyright whether home, colonial or international, announced that they would accept no more music for publication. The threat was combined with lobbying for copyright reform through the Musical Defence League. That came first in 1906 with the Musical Copyright Act which was followed by the Copyright Act 1911. The 1906 act was expressly directed against piracy, making it a criminal offence to produce, sell or possess pirate copies of copyrighted musical works, while it also gave the police the right of entry and search.

The first criminal case of music piracy, as reported in the Music Opinion And Music Trade Review over the period December 1905 to February 1906 gives a fair indication of how sheet music piracy operated:

Messrs. George Wooton, James Frederick Willetts (known as the ‘Pirate King’), William Tennant, John W. Puddefoot, and William Wallace are charged in Bow Street Court with conspiracy to print, publish, and sell copies of copyrighted music without the owners’ consent. The solicitor for Messrs. Chappell & Co., who are prosecuting the case, in his opening statements indicates that many other persons (engravers and printers) will be named as part of the conspiracy, some called to testify. Two classes who will not be called are the middlemen and the humbler class of life, the hawkers. He points out that in the last two and a half years, 300,000 illegal copies of Chappell’s copyrights have been seized, two million belonging to other publishers. When the copyright owners became troublesome, the idea of a limited liability company of pirates was put into action. Thereafter the minute a raid was made, an action for unlawful trespass could be begun, the whole company would cease to exist, and a new one could be formed the next day to carry on the work.

In January 1904 the firm of James Fisher & Co. was registered. Willetts’ name did not appear as an owner, but those of Puddefoot and Wallace, and the false names of several others, did. The purpose of the company was to publish and distribute cheap music and to give technical and legal assistance to its members who found themselves in trouble with the courts. The prosecution claims the address of the company was false, the ‘whole thing a mere sham’, and whatever property there was, was Willetts’.

Various witnesses offer testimony to convince the court that the case should go to trial. Evidence is given about previous cases against the defendants: 77,788 illegal copies destroyed and £10 10s costs against John Fisher, 6 Jan, 1904; 287,792 copies destroyed and £10 10s costs against George Wooton on 1 August 1905; in June 1903, £5 costs against W. Fisher; June 1904, £15 15s against Willetts; 24 September 1904, £4 4s against Tennant.

Arthur Preston testifies about the magnitude of the illegal trade with figures on the number of copies seized at different times: in June 1903, 25,000 copies at Compton Passage, Clerkenwell; October 1904, 237,000 copies at Poole Road, Hackney; January 1903, 119,000 at Boundary Lane, Walworth; and 200,000 torn copies and 11,900 complete at Ormonde Street, Holborn.

An engraver who has engraved blocks for Willetts for about five years, says that some were left in various names at railway station cloak rooms and the tickets forwarded to Willetts …

The hearings in the Willetts case occupy another eight days spread over seven weeks. Two hundred ‘exhibits’ are put in, and over fifty witnesses called – none for the defence. A sixth name is added to the conspiracy, Philip Fleming Bockenham. The case for the prosecution depends heavily on material evidence found at various premises associated with the defendants and on reports about the seizures of illegal copies.

A police constable who had been called by Mr. Preston to a van off City Road on 25 September identifies Willetts as in charge of the van. At the time, Willetts refused to give his name and walked away. The van contained over 12,000 illegal copies, including 3,000 of ‘Bird In A Gilded Cage’.

On 6 December 1904, at Worship Street Police Court, the destruction of 32,000 copies of pirated music was ordered and 6 guineas in costs ordered against Tennant.

A tailor, who ‘did a bit’ in cheap music with Fisher & Co. says he paid half-a-crown per 100 copies for the music, the company the carriage. He tells of a visit from Willetts who showed him samples from the ‘People’s Music Publishing Company’.

An engraver says Willetts was introduced to him as ‘Mr. Chalk’, and that he made blocks for him, receiving copies of the music from ‘Mr. Chalk’ at street corners or at public houses, leaving the finished blocks at cloak rooms at Holborn Viaduct and at Ludgate Mill stations. His commissions amounted to several pounds but he cannot be exact. His firm had made hundreds of blocks for Willetts including The Holy City, Florence, and Spring Chicken.

Another printer says he had worked for Puddefoot, printing for him, in two different locations, about 22,000 copies, including Ora Pro Nohis.

The solicitor for the defendants insists repeatedly that the publishers should be made to bring in their assignments (receipts signed by composers for certain amounts in return for the rights to a piece) in order to verify their ownership of some of the pieces in question, but the magistrate is just as adamant that the certificates of registration at Stationers’ Hall are sufficient proof.

An agent for both the Musical Copyright Association and for Francis, Day & Hunter testifies about raids in which he has participated. On 14 December 1903, 45,000 illegal copies were seized in Mount Pleasant Grove, Islington, a place frequented by Willetts and Tennant. On 24 December 1903, another 73,000 copies were seized in Link St. Homerton. Willetts and Tennant were there at the time, along with men known as ‘The Rabbit’, ‘Long Tom’, and ‘Robbie’. Raids on premises in Red Lion Yard, Wardour Street and at Puddefoot’s place in Turnagain Lane netted 11,000 copies. In a raid in Danbury Street, Islington, over 100,000 copies were seized and Tennant was there at the time. On 16 February 1905, about 314,000 copies were taken from stables at the rear of the Angel Arms in Clapham; ‘Robbie’ and ‘The Rabbit’ were both present.

Another agent for Francis, Day & Hunter tells of a raid on premises in Banner Street, St. Luke’s on 15 November 1904. About 168,000 copies were seized. While the agents were delayed obtaining admission, those within were tearing up the music, thirty sacks full of it. Later, in connection with this raid, Tennant was summoned to Worship Street Police Court. Willetts was at the court and took a great interest in the proceedings.

A ‘corrector of the press’ who had been employed by Willetts as a stock keeper, produced many letters gathered while working in that capacity. One from Manchester addressed to the ‘Pirate King’, states that unless the newest music is promptly forwarded, the writer will have to transfer his custom to the Pirate King at Leeds, who supplied better and more up to date music and at less cost …

The eight days of public trial at the Old Bailey have entailed an enormous expenditure of money by the prosecution and the convictions – ‘of graduated generosity’ – are a source of some disappointment: Willetts, the director of the nefarious enterprise, gets nine months without hard labour; Tennant goes to jail for two months, Puddefoot for one. Ross, the printer-journalist, will pay £50 in fines, and Wooton and Bockenham come up for judgment if they again engage in piracy.

The Music Opinion And Music Trade Review saw further problems ahead but concluded There is consolation for the publishers. They have proved that copyright is a property just as much as a man’s watch and chain and they have proclaimed to the world their determination to consider no cost too great in fighting to protect that property.

The 1911 act, which remained in force in the UK until 1957, was even more significant than the 1906 act. Its origins were not local difficulties (piracy) but the need for copyright to be international in its reach. In 1886, the Berne Convention was agreed. Its aim, anticipating the concerns of the European Commission a century later, was to facilitate the trade in intellectual property. Before the Berne Convention, national copyright laws only applied to works created within each country. Consequently, a work published in the UK by a British national would be covered by copyright in the UK, but could be copied and sold by anyone in France or Germany, without the original author being recompensed. Likewise, a work published in France by a French national could be copyrighted there, but could be copied and sold by anyone in the UK. Under the Convention, copyright automatically came into force upon the creation of a creative work without being asserted or declared. Thus, an author need not ‘register’ or ‘apply for’ a copyright in countries adhering to the Convention. As soon as a work was ‘fixed’, that is, written or recorded on some physical medium, its author was automatically entitled to all copyrights in the work unless and until the author explicitly disclaimed them or until the copyright expired. Thus, under Berne, foreign authors were given the same rights and privileges as domestic authors in any country that signed the Convention.³

In 1908 the Convention was revised, extending copyright protection for 50 years after an author’s death, and changing the rule on performing rights to the effect that the presumption was an author would automatically retain the right and accordingly there was no longer a need to print a notice to that effect. In the UK there was some consultation with music publishers, notably William Boosey, as the government began the revision of its copyright laws, but the crucial pressure on the government came from the need to comply with its international obligations.

Under the 1911 act four key rights were granted to the creators of original literary, dramatic, musical and artistic works, all of which were transferable by assignment to another party, or subject to licence. The rights were:

• the right to reproduce the work in any material form, including mechanical recording;

• the right of publication;

• the right of performance in public; and

• the right to authorise other persons to do these acts.

There are local variations in the manner in which these rights are exploited around the world and, as noted above, in Europe there are additional moral rights, but collectively these four rights form the basic infrastructure on which the international music publishing community depends to the present day. However, rights granted are commonly contested and, as such, need to be defended against the users of copyrights, such as broadcasters, which over the years have strenuously fought to limit the cost of the usage of those copyrights through appeals to the courts and regulatory authorities, always seeking to pay rights owners less.

The passing of the 1911 act led to the creation of the MCPS as a limited company in 1911 and in 1913 of The Authors’, Composers’ and Music Publishers’ Society, which in 1914 became the Performing Right Society (PRS). However, while the name of the new society confirmed the growing importance of the performing right, neither mechanical nor performance rights were priorities for UK music publishers during the course of the First World War. One immediate effect of the war was to remove German and Austrian competition from the fledgling British gramophone market. Nonetheless, it was not until the end of the twenties that record sales, and therefore mechanical royalties, became a significant source of publishing income. In anticipation of the passage of the 1911 Copyright Act that enshrined a publisher’s right of recompenses from the making of copies of a performance in the form of a piano roll or a sound recording, Mecolico was established to collect such revenues due to publishers, but it was not until 1925 when record sales had grown considerably that the MCPS was created, supplanting Mecolico with its broader brief. The MCPS revenues rose quickly and in 1927, mechanical royalties at £200,000 were greater than performance right collections at £116,000.

In the immediate post-war years UK publishers and composers were divided, between and among themselves. For a composer or publisher of serious or standard music the performing right was seen as yet another difficulty in getting his music performed; for a writer or publisher of popular music it was additional revenue. At one point it was suggested that performance fees only be collected from those using music for the purpose of making money, such as cinemas, hotels and restaurants, but not from amateur choral societies and the like. When that view was rejected, the publishing company Novello, a large portion of whose income came from sheet music sales to schools, decided not to join PRS. Novello was not alone. In the early days a number of publishers vacillated, joining and then leaving.

Nonetheless, PRS made progress, in great part due to Pierre Sarpy, the society’s first general manager, who as SACEM’s representative in the UK had already developed a working knowledge of what was required to run a collection society. It signed reciprocal agreements with its European counterparts and began licensing users, following the path Sarpy had initiated on behalf of SACEM, by signing up the trade associations and offering discounts to their members, a practice which has continued to this day. Sarpy was briefly followed by a more contentious general manager, JB Williams. Williams’ other hat, as the Secretary of the Musicians Union (MU), meant that he was often caught seeking to satisfy two masters with very different agendas. He soon quit the society, but retained his general secretaryship of the MU.

Williams was overly litigious, but one court case moved things appreciably forward for the society. A pianist working in a cinema in Epsom was found to have been regularly performing copyrighted material (such as ‘Keep The Home Fires Burning’ and ‘If You Were The Only Girl In The World’) without a licence. The cinema’s defence was twofold: that the pianist had been instructed to avoid copyrighted music and that PRS had brought the case merely to generate a debate about copyright. Ruling for PRS in 1918, Mr Justice Atkin famously declared:

One has very little sympathy when a thief complains of the organization of the police force but many people otherwise honourable in every transaction of life … have very loose notions as to the honesty of dealing with other persons’ property in such matters as copyright.

Then the society, which only accounted for some 20% of the music published in the UK, was beset by MU members threatening to boycott the PRS in 1918 in response to a proposed increase in performance tariffs, which was based on the number of musicians playing. The boycott anticipated the far more momentous one organised by James Petrillo in the US, when, as president of the American Federation of Musicians and in protest that broadcasters’ increased use of records on air was to the economic detriment of his members, he banned all commercial recordings by his members from 1942–4. While Petrillo’s boycott changed the direction of US popular music, the English boycott was shorter lived; nonetheless it highlighted yet another area of disunity within the music community, that between publisher/composer and musician.

The British Music Union (BMU), which was established in November 1918 by a group of dance teachers, also fought against the performing right. The BMU initially published a list of ‘free music’, titles on which the copyright had expired and current material for which publishers were not seeking a performance fee. In 1923–4, it sought to introduce a Private Members’ Bill into Parliament to return the copyright law to its pre-1911 state. The attempt failed as did a second, the ‘Tuppenny Bill’ of 1929, lobbied for by the International Council of Music Users Ltd (ICMU). A loose aggregation of dance teachers, hoteliers and restaurateurs, ICMU sought to end the performing right through an amendment to the Copyright Act 1911 that would grant a buyer of a piece of sheet music for an additional fee the right to perform the composition, be it a song or a symphony, in perpetuity. The fee proposed was two pence, hence the bill’s nickname. The bill received two readings before failing in the face of ridicule from the likes of humorist and novelist A.P. Herbert and cartoonist David Low and critical coverage from the press. If Mr Justice Atkin’s 1918 ruling demonstrated that the notion of copyright had substantial legal backing, the rejection of the ‘Tuppenny Bill’ showed that there was a growing understanding and acceptance of the economic value of copyright, paving the way for the modern era in which intellectual property was a valued commodity. This notion, and the difficulties it still posed, was famously captured in the New Yorker cartoon of the eighties in which two elderly, besuited gentlemen on a park bench watch as a black teenager with a boombox on his shoulder, music blaring forth, walks past them. One says to the other: That’s intellectual property you know.

The PRS’s victories over the BMU and ICMU depended on it controlling the repertoire would-be licensees wanted. This was proving difficult. By 1921, fewer than half of the 35 companies belonging to the MPA were PRS members. Those remaining outside PRS included virtually all the owners of popular music. Three of them represented 23 American publishers and the most popular titles of the day. All this music, which they listed in advertisements, could be played without a fee or licence.

This stratagem had two aims: to preserve the sales level of sheet music, which was widely considered to be threatened by pressing for performance royalties, and a desire to act independently rather than have access to their repertoire controlled by a body over which they had only limited control. As the rights and revenue strands expanded beyond that possible for a single publisher to administer, music publishers acceded to such limited control, but always with a degree of reluctance, a reluctance that has notably grown in recent years with regard to the online market.

Moving into the twenties, a degree of unity came with the explosion of cinema. This provided a new and sudden increase in the music market. Films were silent but they required background music to underline the actions and emphasise the emotions the actors presented on the screen. The result was professional musicians performing more live music than at any other time in the UK’s history. Even the smallest cinema needed a pianist and music every day of the week, while the larger cinemas employed more musicians, even orchestras, not to mention the mighty Wurlitzer, the gigantic organ that made the musical element of film shows even more elaborate. Without even the need to struggle to secure rights, a dramatic new branch of showbusiness provided music publishers with a new revenue stream. Moreover, it was a rich stream and one not muddied by pirated sheet music, which by the twenties was far harder to find.

According to Ehrlich, members of the Cinematograph Exhibitors’ Association (CEA), which covered most cinemas, took out some 2,500 licences, approximately half of the total issued by PRS, while between 1923 and 1925 the number of music hall licences almost halved. The cinema had supplanted the music hall as the people’s favourite form of entertainment outside the home. Furthermore, the cinema’s need for popular and light music provided an added incentive from those publishers specialising in light music to rejoin the PRS and to advertise their wares directly to cinema managers. Thus, a paper like the Performing Right Gazette regularly carried advertisements directed at cinema musical directors for essential musical pieces to accompany their films:

The Drama Collection: PATHETIC. Mourning in the home – the empty cradle; Funeral – the last journey – gloomy forebodings; Epilogue – peace after all trials; Affliction – anguish – cries of the tortured; Despair – unrequited love – cruel separation. DRAMATIC – tumult – riots – confusion – panic; Extreme anxiety – horses stolen: Flight – in danger; Mystery – burglars in the house: SENTIMENTAL. Salvation – safety at last – unbounded joy – overwhelming relief.

A regular advertiser was Bosworth, the main publisher of Albert William Ketèlbey, a composer who specialised in musical panoramas and descriptive scenes. His best-remembered works are ‘In A Monastery Garden’ (1915) and ‘In A Persian Market’ (1920), exotic, impressionistic pieces which conjured up (Western) images of foreign climes. With the major exception of ‘Persian Market’, few of these compositions were hits in individual recordings but they became most familiar through their use as accompaniment to silent films and as background and mood music by tea-dance orchestras the length and breadth of Britain.⁴ By the late twenties Ketèlbey was receiving in excess of £1,500 a year in performance royalties, much to the chagrin of many of his fellow PRS members.

The problem was twofold: the status of Ketèlbey and his publisher Bosworth and the means by which the society distributed the fees collected, both recurring problems for all societies over the years. It was relatively easy for music publishers to oversee the sales of sheet music, but more impractical was the PRS’s attempts to collect details from licensees of actual performances of the works it controlled. The practice was replaced by a ‘classification’ system, which was even more unacceptably clumsy and divisive. It was described by the society’s general manager Charles James as a classification of the members, based on their status and the character or type of their works, in conjunction with such data as was available regarding the extent of performance of their works. This meant authors and composers were classified into no less than 10 categories, with publishers being asked to further grade them according to the ‘popularity and sales’ of their work. Publishers were also graded, an exercise which inevitably caused dissension, particularly as what was as stake was actual money: the higher the grade, the greater the revenue. Then there was the matter of status. Should a standard music publisher of long standing be ‘rewarded’ by a higher grade than that given to a very successful publisher of popular material that had only just joined the society?

Seniority and status carried the day for some time at PRS and other societies, notably ASCAP, where during the thirties the squabbles between publishers of different rank became very bitter (see Chapter 2). And to some extent an element of status has continued. Thus, just as in the world of record production classical recordings in the pre-CD era had always been issued on better quality vinyl than popular albums, so within the society world until quite recently, certain repertoire strands were rewarded/protected for reasons of perceived cultural importance. That said, the difficulties of counting actual performances have fallen in recent years with computerisation and the supply of accurate logs by users. These new practices often had unexpected results. When in 1991, Billboard decided to base its charts on actual sales as reported by Nielsen SoundScan, rather than merely phoning distributors to get their figures, it was discovered that country music was selling in far greater quantities than previously thought. Similarly, when PRS changed the basis of calculating what was played in clubs from an extrapolation of its airplay logs, it discovered that a far wider range of music was being performed.

Back in the twenties, Ketèlbey’s success was frowned upon. His publisher Bosworth’s response was to challenge the payments made by PRS as being too low. To prove this he organised an independent check on the performance of music in a number of cinemas. When PRS refused to accept these figures, which demonstrated a significant level of underpayment, Ketèlbey (briefly) resigned. However, his pre-eminence as a provider of music for silent films was soon eclipsed. The arrival of talking pictures dramatically changed the game. In the US it led to Hollywood Studios buying up publishing companies one after another, while in the UK the talkies made even more complete the dominance of American popular music.

The talkies and the gramophone helped transform the music market in the UK, the first changing musical tastes and the second reflecting the accompanying changes in social behaviour as people gathered around the gramophone rather than the piano. The impact of both, however, was limited by the Depression. Not so the impact of the radio, which grew and grew (the number of licences doubled between 1929 and 1933 in the UK) and caused music to become virtually omnipresent, the glue of the entertainment sector, along the way opening a new source of income for publishers and composers.

In the US, where radio was controlled by commercial entities, the question of who was to pay for broadcasters’ use of music led to a bitter, lengthy struggle which eventually led to the reform of ASCAP, which was publisher-oriented, and the creation of a competing society, Broadcast Music Incorporated (BMI). For a time BMI was controlled by the broadcast industry.

In the UK, the first broadcasting age was a state-run monopoly. The BBC, aiming to provide a service rather than make a profit, opened for business in 1922 and in 1923, despite the concern of some publishers that broadcasting would compete with their small but growing revenues from record sales and would impact on their revenues from dance halls, cinemas, restaurants and the like, PRS issued its first licence to the BBC.

Music quickly proved to be essential to the BBC, accounting for some three and a half hours of programming each day in 1923, compared to two hours and five minutes of other types of programmes, rising to four hours and 40 minutes in 1926, double the time accounted for by everything else it aired. And the BBC was popular. In 1922, 36,000 people had wireless licences; by 1926 this had risen to 2.2m. The BBC also took its civic and cultural responsibilities seriously, creating the Musical Advisory Committee in 1925 and the Advisory Committee on Opera a year later, which funded (and broadcast) concerts, creating both symphony orchestra and dance bands, rather than merely using recorded music. In short, the BBC became the latest cultural gatekeeper to the world of music. This naturally led to a struggle for access, which led to publishers reviving the practice of ‘plugging’ – paying, this time bandleaders, for the performance of a song – from their sheet music days. Dubbed ‘payola’ in the US (although it never overly distorted the market – hits had to be popular no matter how many times they were plugged), it was never satisfactorily controlled and would return again in the immediate years after the Second World War.

In the UK, broadcasting matters were examined by governmental bodies, such as the 1925 Crawford Committee of Inquiry, which recommended the continuance of funding the BBC by licence and rejected advertising as a source of revenue. This was in marked contrast to the US where advertisers, networks and rights owners struggled to reap the profits of the music explosion that broadcasting brought with it. To understand that fully, we need to go back to the beginnings of Tin Pan Alley, New York City’s music district.

Like the UK, America too had a piano revolution. After the American Civil War, over 25,000 new pianos a year were sold in the US. As a result, the demand for sheet music grew rapidly and more and more publishers began to enter the market. Initially this was fuelled by the demand for standard music. Standard music publishers, like Boston’s Oliver Ditson and Company, published thousands of titles for voice and piano, as well as choral pieces, instruction books, song collections for choirs, chamber music and opera scores, of which some 70% were European compositions that had not been copyrighted in the US. All this sheet music was intended for performance. But towards the end of the nineteenth century, as New York fast became the focal point for US performing arts, the city emerged as the centre of popular music publishing, supplanting Boston, Chicago and Philadelphia, the homes of standard music publishers.

Reflecting the advent of the variety show, in which a show was a series of turns, the new breed of New York City-based publishers specialised in popular song, both sentimental and comic: in effect, music as entertainment. Simultaneously, publishers added elaborately illustrated title pages to the show’s sheet music, marketing it as a souvenir, as well as means to attempt the replication of that performance at home. The likes of T. B. Harms, Shapiro, Bernstein & Co., Joseph Stern, Leo Feist (a corset salesman turned music publisher who is credited with introducing high-level promotion to music publishing) and self publishing songwriters, such as Harry Von Tilzer and Chas K. Harris, who was to eventually sell over 5m sheet music copies of his 1892 composition ‘After The Ball’, published only popular songs. One reason many songwriters became self publishers was the low fees offered them by existing music publishers. In the first decade of the twentieth century music publishers traditionally bought the complete rights to songs for between $25 and $50.

In principle, the US MPA represented both standard and popular publishers. However, the different aims and interests of the two led, in 1907, to most of the Tin Pan Alley publishers quitting the MPA on the basis that it sought only to protect serious and educational music publishers to their detriment, only to rejoin when, in expansionist mood, they started buying up standard music catalogues. But their prime concern remained the cost of promoting their popular music catalogues.

Their first solution to the question of how to make popular songs popular was the song-plugger. Often a songwriter, he was employed by a publisher of popular songs for some $25 a week to persuade singers to perform their songs. That persuasion was usually a fee, and over the course of the first decade of the twentieth century those fees rose considerably. Headline acts were receiving as much as $75,000 for a guaranteed number of performances of a given song. Generally the figure was less, but by 1913, when reportedly some 30m copies of sheet music were sold in the US, entertainment trade paper Variety reported that it cost in the region of $20,000 to ‘exploit’ a new song with no guarantee it would be a hit. The major cost incurred by music publishers was plugging. In 1914, Variety described how prevalent plugging had become:

Years ago a singer here and there would ask a publisher for a suit of clothes now and then, or the loan of $50, and be tickled to have the request granted. Now they tell the publishers what they want to sing, how much a week they must have for singing the song or songs, and if not receiving a stipulated weekly ‘salary’, think nothing of asking for an advance. Every singer or published song is not on a music publisher’s payroll, but there is hardly a singer who doesn’t receive remuneration of some sort, for it has grown to be the custom, so much so that publishers who held out against the practice to the very last had to succumb.⁵

In response to this situation, 15 of the major popular music publishers, including most of those responsible for introducing payola, established the Board of Trade of the Music Publishers with the aim of ending the practice of paying singers directly or indirectly to sing their songs. It was agreed that a $5,000 fine could be levied against any publisher who paid singers. Leo Feist, who had at one time claimed to be paying $100,000 a year in payola, was the only leading popular publisher to refuse to join the new society. The move did not, in fact, end payola, which became more indirect, with singers being signed to music publishing houses as ‘writers’ or cut in as writers of the specific songs they agreed to sing. Payola and plugging survived but within two years the Board of Trade was dead and buried.

However, one society founded in 1914 has survived to this day: The American Society of Composers, Authors and Publishers (ASCAP). The society’s raison d’être lay in the 1909 Copyright Act. Previously US music publishers, like their UK counterparts, had been concerned to protect their sheet music revenues, with the public performance of their copyrights seen as essentially promotional. The 1909 act changed that, stating that a copyright owner shall … have the exclusive right to perform the copyrighted work for profit. Public performance could be licensed and the copyright owner recompensed for the use of his work by others in search of profit. Again, as in the UK, it was the French who led the way. In 1911, SACEM sent a representative to organise the collection of performance royalties (5% of gross receipts) when French compositions registered in the US were played. One man could do this for SACEM because he was collecting on behalf of relatively few copyright owners who had published relatively few titles, which were performed in relatively few places in the US. But the number of US music publishers and the volume of their copyrights meant there was no way for a single publisher (or writer) to check the usage of their copyrights across a myriad of commercial concerns, hence the need for a body that could oversee the combining of their catalogues into a single entity and license the use of any part of it to users, monitor that usage, collect the licence fees and divide the resultant revenues, minus a small administration charge, between the copyright owners, with the publishers always remaining in control. Thus, ASCAP was born in 1914, in John Ryan’s words, as a private organization for the enforcement of a public law or, in the words Crispin Evans used to characterise the MCPS, as an organisation which has to exist to do for publishers collectively what they would far rather do for themselves, but cannot.

The problems of ASCAP and all collection societies, as we shall repeatedly see, are caused by the links in the double chain in which the assignment of rights flows from creators, through publishers and administrators to users, with revenues flowing back in return. The history of the administration of copyright has seen continual appeals to the courts and regulators about the claims of rights holders and the tariffs sought by them. A parallel strand has been blockages in both the revenue and usage streams and a lack of transparency, this last a common theme, particularly when new rights and usages have been claimed. The early history of ASCAP parallels that of PRS, with disunity between the publishers, the refusal by users to recognise the rights claimed by authors and publishers, and the intervention of the courts and the government, with the key difference being that in the US the clashes were far more disruptive. In the UK the would-be competitors to PRS were short lived; in the US the clash over revenues from radio stations between ASCAP and the broadcasters led to the creation of a rival, BMI.

ASCAP’s first battles were with users. The society, which set a tariff of between $10 and $15, depending on the size of the hotel playing music, won two important cases. The first affirmed that a licence was required even when copyrighted music was performed not directly for profit; no admission charge being made, but as part of the general environment of a hotel or restaurant.

Shanley’s Restaurant at New York’s Times Square had initiated a new form of entertainment, cabaret. As well as food it offered its customers numbers from current Broadway shows, one of which was Victor Herbert’s operetta Sweethearts, one of the hits of the 1913–14 season that was running at the New Amsterdam theatre only a block away. One day in December 1913, Herbert took his friend Giacomo Puccini to dine at Shanley’s. As Herbert entered the restaurant with Puccini the orchestra was in the middle of playing through the entire score of Sweethearts, and the leader bowed to Herbert who nodded in acknowledgement. Puccini smiled at his friend and remarked, That’s nice. More money for you. I hear this lovely music so much – everywhere I go. You must be getting very rich.⁶ Herbert explained to Puccini that, in America, the only way composers made money, apart from box office receipts, was from the sale of sheet music. Therefore, he explained, Sweethearts could be played every five minutes by every restaurant in New York without putting a penny extra in his pocket. Moreover, he added, the well-advertised performances of his score at Shanley’s were cutting into box office revenues at the New Amsterdam. Puccini was outraged. This America! Had it no respect for its creative artists? Why, in Europe it would be unthinkable to play a composer’s work without either permission or compensation. Even the smallest bistro in Paris paid a fee for the use of copyrighted