Modern music has come a long way from the hand-illustrated sheet music and heavy shellac albums circa 1925. Our Jazz Age predecessors struggled no less than contemporary artists do concerning rights, permissions, “sampling” and myriad points of contention in protecting their creative expressions.
A new book by Gary A. Rosen coming out in January 2020 titled Adventures of a Jazz Age Lawyer explains the backstory of the nexus of law and entertainment. It focuses on legal giant Nathan Burkan, a central character from whom emanated many courtroom victories for musicians and other artists.
But where did the concept of protecting works of writers, artists and musicians even begin? Rosen explains:
In the Copyright Act of 1790, styled “an act for the encouragement of learning,” the first Congress took a rather narrow view of its constitutional authority, providing that the authors of “maps, charts, and books” could…obtain “the sole right and liberty of printing, reprinting, publishing and vending” for a period of fourteen years… In 1831…the list of protectable writings expanded to include “prints,” “engravings,” and “musical compositions.”
No less than Supreme Court Justice Oliver Wendell Holmes weighed in on the validity of a copyright on an illustrated circus poster, which opened the door to the concept of other creative works enjoying such protections:
“If they command the interest of any public, they have a commercial value—it would be bold to say that they have not an aesthetic and educational value—and the taste of any public is not to be treated with contempt.”
Meticulously researched yet written with a light, storyteller’s hand, Adventures of a Jazz Age Lawyer serves up the colorful history of those who influenced the legal developments that affect musicians today. It’s an intelligently executed tale that provides context for musicians, history buffs and legal eagles alike.
Why were you moved to write a book about the impact of Nathan Burkan’s life work?
As a lawyer and an admirer of American pop culture, I have always been fascinated by the intersection of the two fields. In many ways, the history of American pop culture, especially music and movies, is legal history. Nathan Burkan was, hands down, the leading copyright and entertainment lawyer during the first third of the 20th Century, present at the creation of the recording and film industries and still there for the arrival of radio broadcasting and synchronized sound. His career encapsulates the developments that made the United States the world’s leading exporter of creative energy.
What was Burkan’s prime accomplishment regarding entertainment royalties? Has the world of royalties changed much from Burkan’s time?
When Burkan arrived on the scene at the turn of the 20th Century, songwriters could not collect a dime for mechanical reproductions (back then, 78 rpm records and piano rolls) or for public performances of their works. The money in music (such as it was) came from selling sheet music to home musicians. During the years of arduous work that led to the Copyright Act of 1909, Burkan was the main advocate for creating what we now call the “mechanical right” which to this day is one of the principal revenue streams for songwriters. Indeed, one of the main purposes of the 2018 Music Modernization Act is to improve collection and distribution of such royalties in the digital world.
Even more important, though, was Burkan’s central role in the 1914 establishment of the American Society of Composers, Authors and Publishers (ASCAP). By pooling numerous copyrights and licensing, and enforcing them collectively, and distributing royalties proportionally, ASCAP provided the first practical means of monetizing public performances of music, which eventually became the songwriter’s most important source of income.
It is difficult to fathom the obstacles Burkan had to overcome, including the conflicting interests between different classes of composers, and between composers versus publishers, and years of organized opposition by music users who were accustomed to using music for free (and in many cases being paid to use it by publishers who saw public performances by professionals as the best way to market sheet music to amateurs). More than seven years passed before ASCAP had any net income to distribute to its members. But Burkan’s model of collective rights enforcement was later adopted by BMI and SESAC, and in recent years by GMR, SoundExchange, and, even as I write this, the brand new Mechanical Licensing Collective. It is always remarkable, when new media appear, how similar their arguments against paying for music are to those arguments made 100 years ago.
Burkan did not simply revolutionize the popular music business; he revolutionized popular music. The creation of the mechanical right and the establishment of ASCAP created new incentives for songwriters. The standards of the Great American Songbook are products of this new business paradigm. Songwriters were no longer subsistence pieceworkers prized solely for their conformity to established rules, for their ability to crank out knockoffs of the latest hit or to cater to the latest dance craze. The rising generation of songwriters was writing first and foremost for the professional performer, not the home musician. They were artists, free to make demands on the public, instead of kowtowing to its established preferences.
What was the most exciting part of your research? The most tedious?
Archival research is both the most exciting and the most tedious part of the research that goes into a rigorous history of this period. It requires countless hours reviewing thousands of pages of paper documents that have been moldering in storage for 100 years. But you occasionally hit pay dirt: a telegram, a draft contract, a handwritten note that has never before been scrutinized, which provides some piece of a puzzle or dispels some widely-held misconception. Legal records are especially tedious but can be particularly revelatory when a show business figure given to hyperbole and bluster suddenly has to go under oath in a court of law.
What is the most often-asked question that today’s musicians want to know when it comes to their legal affairs?
Right now I would say the most troublesome area, thanks to cases involving “Blurred Lines,” “Stairway to Heaven,” and other well-known songs, is determining where the line is drawn between proper homage, influence and fair use on the one side and copyright infringement on the other. No lawyer can predict the outcome of such cases with any confidence. While plagiarism cases involving literary works and films rarely make to a jury, courts regularly submit music cases to juries under legal standards that are vague and highly subjective.
What is the biggest misconception people have about copyright laws in the music business?
There are so many; I’ll pick one that is timely. People do not understand that songwriters and performers cannot generally prevent political candidates they don’t like from playing their music at events. Most rallies are held in venues that hold blanket licenses that permit the performance of any copyrighted composition, and the law does not give performing artists any right to restrict the public play of their recordings (that, by the way, is how radio pays royalties to composers but not to record labels and artists).
Why does the music from the Great American Songbook fascinate you?
It is such a miracle. Where did it come from? It was such a perfect storm of influences: social (immigration, integration), technological (electronic microphones, recording, broadcasting, sound pictures), and legal (expansion of exclusive rights). It could not have happened anywhere else, at any other time. It is almost 70 years since this music gave way to rock ’n’ roll, yet it is still ubiquitous. Recording a set of standards is still a rite of passage for rock and jazz artists.
Is jazz as a genre a little quirkier to prove as intellectual property because of the element of improvisation?
Sure. Copyright law always imagines the solitary composer working out melodies on a piano and writing the notes on music paper. Not the way most jazz is created!
There is no easy or short answer to the question, but one point I would emphasize is that copyright law requires what we call “fixation” in a tangible object – usually in the case of a music manuscript or a recording. An ephemeral live performance cannot create a copyright. The good news is that a recording will do it – you don’t even have to register it with the Copyright Office or observe any other formalities.
What was the biggest surprise to you in writing this book?
One historical pattern just keeps repeating itself: a new medium appears that uses music, it claims that if it has to pay as a start-up it will die in its incipiency, as it becomes established it claims that it shouldn’t have to pay because it is giving free advertising to music, and when it becomes established and profitable it claims that it would be unfair to make it start paying for music now, disrupting its established business model and putting it at a disadvantage with the next new medium that comes along.
Although it has gotten better over the decades, to some extent the music industry still falls for this routine every time, as do Congress and the courts.
For more information visit www.amazon.com/dp/B07ZBXP4ZC?_encoding=UTF8&isInIframe=1&n=133140011.
Photos courtesy of and with permission of Gary A. Rosen. Photo of Gary A. Rosen (c) Greg Benson. Photo of Nathan Burkan from NYU Law Magazine.
(c) Debbie Burke 2019