“If music did not pay, it would be given up.” So wrote Associate Justice Oliver Wendell Holmes in a landmark Supreme Court decision in 1917. Holmes wasn’t referring to musicians themselves in that statement, but to places of business in which copyrighted musical works could be heard, whether such music was live or recorded and, critically, whether or not it generated direct revenues. “Whether it pays or not,” continued Holmes, “the purpose of employing it is profit and that is enough.” Narrowly speaking, the decision in Herbert v. Shanley Co. forced Shanley’s Restaurant in New York City to pay a fee to the American songwriter Victor Herbert for playing a song of his on a player-piano during dinner service. The case represented a much broader victory, however, for the new organization of which Herbert was the head: the American Society of Composers, Authors and Publishers (ASCAP), which was founded on February 13, 1914.
Among the founding members of ASCAP were the musical giants of the day: Irving Berlin, James Weldon Johnson, Jerome Kern, John Philip Sousa. Circa 1915, songwriters like these made their living primarily from fees earned through the sales of sheet music. Protection from unauthorized printed reproduction of their compositions was a right clearly established under U.S. copyright law, but it was a novel contention at the time that the composer had a further right to a share of any other revenue stream to which his work was a contributing factor. This was the claim made by ASCAP, which said that its fundamental goal was to “assure that music creators are fairly compensated for the public performance of their works, and that their rights are properly protected.”
In the wake of the successful Shanley decision, ASCAP adopted the royalty-payment mechanism that is still in use today: the “blanket license.” The ASCAP blanket license gives signatory businesses such as restaurants, retail stores and radio stations the right to play any composition by an ASCAP artist in exchange for a fixed annual fee. The broadcasting industry, in particular, has continually offered resistance to the ASCAP approach, going so far as to create what is now ASCAP’s biggest competitor, Broadcast Music Incorporated (BMI), in an effort to find more favorable economic terms. Yet the size of the ASCAP catalog, and the popularity of the roughly 8.5 million songs it encompasses, effectively force commercial music users to become ASCAP licensees.
