As the controversy [1] over the Copyright Royalty Board's decision to jack up digital performance royalty rates continues, I rummaged through some old files and found this sketch I wrote of appellate justice Learned Hand's 1940 decision, RCA and Paul Whiteman vs. the WBO Broadcasting Corporation. It was part of a reference book I hope to complete some day on crucial broadcasting decisions

Hand's ruling, full of common sense observations about the parameters of copyright protection for performers, shows how far we have travelled from his logic today.

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December , 1940
RCA and Paul Whiteman vs. the WBO Broadcasting Corporation

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On a pleasant spring evening in 1935, big band leader Fred Waring sat at Lindy's restaurant in New York City holding court with friends and reporters. Despite the Depression, times were good for Waring and his Pennsylvanians, a meticulous 70 member dance ensemble with chorus. The conductor/arranger reported earnings of about $10,000 a week by 1932, a huge sum of money in those grim days. Waring in turn paid his fortunate musicians union scale wages when many bands could barely afford train fare. "Fred Waring, Inc.," Time magazine called his operation.[1]

But Waring's good humor that night ended when a colleague mentioned that he had heard the Pennsylvanians on the radio a few hours back. How could this be? Waring wondered, since his band hadn't performed on the airwaves at the time described. The answer was obvious. The station had broadcast a Fred Waring record without his permission and, even worse, without paying him. This practice had irritated the big band leader for years—"a growing menace to all performers," as he put it.[2] And Waring wasn't alone in this sentiment. Paul Whiteman, the dean of ballroom jazz maestros, became furious whenever the subject came up—especially since record manufacturers stamped his disks with the label "not licensed for radio broadcast." It didn't matter. Radio disk jockeys ignored the warning and played the records anyway.[3]

And so Waring and Whiteman founded the National Association of Performing Artists. As president of NAPA, Waring sought the same benefits that composers enjoy under the Copyright Act of 1909: the royalties received when a musician performs their copyrighted work.[4] An interpreter of a musical composition, he insisted, creates something just as unique as a composer, and therefore deserves copyright protection as well. "Fans pay thousands of dollars to hear Sinatra sing a number that all soloists are singing", Waring argued. "—it's what Frank or Lena Horne add to a song that makes people buy one of their records." No two interpretations were the same; therefore musicians should receive payment for every broadcast, live or prerecorded, as did the composers of specific tunes. Almost 700 royalty hungry performers quickly joined NAPA—especially singers and bandleaders, from the baritone Lawrence Tibbett to Guy Lombardo and his Royal Canadians, a New Years eve fixture at Manhattan's Waldorf Astoria. The soprano Lily Pons signed on. So did Bing Crosby. They sought to update the nation's copyright law to include performers whose records radio stations broadcast over the air waves.[5]

Waring led the charge by filing a lawsuit against radio station WDAS in Philadelphia. Whiteman went after WNEW in New York, home of Martin Block's enormously popular Make Believe Ballroom and owned by the WBO Broadcasting Corporation. Block broadcast dance records as if they were live performances, "carrying on one sided conversations with the great names on the record labels," as a listener put it. A WNEW spokesperson made no secret of the station's practices: "We just go ahead and play any record we feel like using, as we have done for years," he declared. "We will utilize records constantly as a source of program material, and most artists are glad to have us do so."[6]

But in the mid-1930s, many artists saw record broadcasting as competition for the live radio performances that they relied on for income. Live music programs, usually broadcast from theaters or hotels, were far more common in the days before television. Both Whiteman and Waring had regular radio shows, Waring's broadcast over 82 NBC stations and sponsored by Chesterfield cigarettes.[7] These band maestros also worried about their reputations in an era when the arbiters of taste regarded jazz as decadent and vulgar. They jealously monitored where and when the public heard their music. Waring often emphasized "family, country and religion," during his broadcasts. "[H]is orchestra has always played to the whole crowd, has never gone too hot or too sweet for catholic tastes," observed one reviewer. Whiteman, who started out as a violist for the Denver and San Francisco Symphonies, championed classical pieces like George Gershwin's Rhapsody in Blue and Ferde Grofé's Grand Canyon Suite. He often defended the innovations in jazz as similar to those in the music of Haydn and Beethoven. These performers cultivated reputations as respectable jazz musicians, and worried about the random, unauthorized broadcast of their 78 rpm records.[8]

And so in 1940 members of NAPA cheered when the Pennsylvania Supreme Court found in behalf of the plaintiff in Waring v. Station WDAS. Judge Horace Stern wrote for the court: "There is no moral or legal difference between tapping telephone wires for the purpose of 'listening in' than there is in using for broadcasting a phonographic disk made by plaintiff in defiance of the maker's injunction written across that disk, to wit: 'Not licensed for radio broadcasting'." Waring's copyright privileges had been violated, Stern argued, for precisely the reasons Waring's lawyers argued. A performer's unique interpretation of a composition represents a creation novel enough to merit copyright protection: "A musical composition in itself is an incomplete work; it is the performer who must consummate the work by transforming it into sound." Buoyed by this victory, NAPA artists began pressing Congress for a law granting them the right to royalties.[9]

But not everyone in the music business sympathized with Judge Stern's position. Aside from radio station owners who obviously did not want to pay for something they now enjoyed gratis, music composers and their publishers worried about this crusade for performers. Although Waring proposed that stations pay a mere 10 cents for each record broadcast, publishers didn't want to split their royalty profits. They put private pressure on their artists not to support NAPA. The final legal showdown took place in 1940 when Whiteman's suit reached the Second Circuit Court of Appeals, presided over by the renowned jurist Learned Hand. In the middle of the case, news broke that Whiteman had not read the fine print of his latest recording contract too carefully. It gave the firm all rights to his music.[10] Although this blunder embarrassed NAPA's musicians, it appears to have had little influence on Judge Hand's ruling against Whiteman and RCA, a decision that shaped radio broadcasting for the next seven decades.

Copyright, Hand stated in his decision, "consists only in the power to prevent others from reproducing the copyrighted work." WNEW and the WBO Broadcasting Corporation never violated that principle in the case of Paul Whiteman's music. They simply bought reproductions of his performances, sold to them by the plaintiff, and put them to the purpose for which they were intended: playing them on record players. WBO did not copy Whiteman's performances—the action that copyright protection forbids when done without permission of the author or publisher. Whiteman had already performed that task by permitting RCA to record his performance and putting it on a record. He could not sell copies of his work to the public and then accuse the public of unfairly copying him by using the copies.[11]

With a faint tone of condescension, Hand dismissed Stern's argument that an interpretation of a work had the same originality as a composition. "[P]eople easily distinguish, or think they distinguish, the rendition of the same score or the same text by their favorites, and they will pay large sums to hear them," he wrote. "Hence this action." But Hand found this principle too vague to settle the case. Whether a performer or composer, artists enjoy the right—the copyright—to control the reproduction of their work, to sell it as they wish for distribution. But once they have taken that step, their monopoly over the work ends. "W.B.O. Broadcasting Corporation has never invaded any such right of Whiteman;" Hand ruled, "they have never copied his performances at all; they have merely used those copies which he and the RCA Manufacturing Company, Inc. made and distributed."[12] And with that Hand dismissed the case. Whiteman and RCA appealed the suit to the United States Supreme Court. On December 16th, 1940, the high court refused to hear the matter, upholding Hand's logic. With that refusal, any common-law property rights—rights made by court judges rather than legislatures—ended for performers with the sale of their records. "The ruling put the disk-jockey for the first time on a secure legal footing," concludes broadcasting historian Erik Barnouw.[13]

Ironically, it was the success of WNEW that paved the way for the current relationship between terrestrial radio stations and performers. Block's program served as filler between live courtroom bulletins from the sensational 1939 Lindbergh kidnapping trial. Freely using records and exploiting his skill as a pitchman, he became a regional hit, selling everything from doughnuts to diet pills for hefty housewives. "Now I'm not saying that your husband doesn't love you," Block crooned, "but when you look in the mirror, are you being fair to him?" Soon Make Believe Ballroom had two million listeners a week and twenty-three sponsors, with a waiting list for more.

Anxious to satisfy its advertisers, WNEW went to a 24-hour format, the first radio station in the United States to do so. Milkman's Matinee became another windfall for WNEW, hosted by Stan "The All Night Record Man" Shaw. Performers began changing their attitude as a new phenomenon surfaced on the post-Depression broadcasting landscape: the hit record. As Block himself might have put it, the disk jockey went from sued to wooed.[14]

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Notes
1 Virginia Waring, Fred Waring and His Pennsylvanians (Urbana: University of Illinois Press, 1997), 113, 138; "Fred Waring, Inc.," Time (June 26, 1939), 52.
2 Waring, Fred Waring, 138.
3 Thomas A. DeLong, Pops: Paul Whiteman, King of Jazz (New Jersey: New Century Publishers, 1983), 210.
4 "Copyright Law of U.S.; U.S. Code, Title 17, Section 1(d)," cited in Allen Kent and Harold Lancour, Copyright: Current Viewpoints on History, Laws and Legislation (New York: R.R. Bowker, 1972), 4; J. Gunnar Erickson, Edward R. Hearn, Mark E. Halloran, Musician's Guide to Copyright, revised edition, (New York: Charles Scriber's Sons, 1983), 53-60.
5 Waring, Fred Waring, 139.
6 Ibid; WNEW quoted in DeLong, Pops, 210-211; "Pitchman's Progress," Time (December 11, 1939), 62.
7 "Fred Waring, Inc.," Time, (June 26, 1939), 52; Waring, Fred Waring and His Pennsylvanians, 118-119.
8 Ibid., 116; "Fred Waring, Inc.," Time (June 26, 1939), 52; DeLong, Pops, 357-359; Paul Whiteman and Mary Margaret McBride, Jazz (New York: J.H. Sears and Company, 1926), 277.
9 Quoted in Waring, Fred Waring, 139-140, 141.
10 Ibid., 141.
11 Whiteman and RCA vs. WBO Broadcasting, 114 F.2d 86 (2d Cir. 1940).
12 Ibid.
13 Erik Barnouw, The Golden Web A History of Broadcasting in the United States (New York: Oxford University Press, 1968), 217.
14 Ibid, Barnouw, The Golden Web, 217-218; J.C. Marion, "The Way We Were, Part II—July-Dec 1946," home.earthlink.net/~jaymar41/late46.html.