ASCAP Forms to Protect Writers and Publishers of Music Summary

  • Last updated on November 10, 2022

The American Society of Composers, Authors, and Publishers was established to protect music copyright holders by collecting fees and royalties for the performance of copyrighted music.

Summary of Event

The copyright laws of the United States have changed over the years in response to new uses for copyrighted materials such as literary works and musical compositions. In 1897, the U.S. Congress added performance rights to the copyright statute. In 1909, Congress extended coverage to include mechanical reproductions such as piano rolls. This addition helped to set the stage for the establishment of the American Society of Composers, Authors, and Publishers (ASCAP). American Society of Composers, Authors, and Publishers Music;publishing Copyright, music [kw]ASCAP Forms to Protect Writers and Publishers of Music (Feb. 13, 1914) [kw]Writers and Publishers of Music, ASCAP Forms to Protect (Feb. 13, 1914) [kw]Publishers of Music, ASCAP Forms to Protect Writers and (Feb. 13, 1914) [kw]Music, ASCAP Forms to Protect Writers and Publishers of (Feb. 13, 1914) American Society of Composers, Authors, and Publishers Music;publishing Copyright, music [g]United States;Feb. 13, 1914: ASCAP Forms to Protect Writers and Publishers of Music[03520] [c]Business and labor;Feb. 13, 1914: ASCAP Forms to Protect Writers and Publishers of Music[03520] [c]Organizations and institutions;Feb. 13, 1914: ASCAP Forms to Protect Writers and Publishers of Music[03520] Hubbell, Raymond Maxwell, George Burkan, Nathan Herbert, Victor Adams, Stanley

In 1913, three friends gathered to establish an organization to protect the writers and publishers of musical compositions. The three—Raymond Hubbell, a composer from Ohio; George Maxwell, an American subpublisher for the Italian firm G. Ricordi; and Nathan Burkan, a New York attorney—wanted to create a body that could enforce the payment of fees for the performance of copyrighted music. They realized that in order to draw attention to their organization, increase its credibility, and bring in members, they needed an important leader. They contacted Victor Herbert, a composer of light operas, a musical theater form popular at the time. Herbert quickly gathered support among his friends and associates within the music industry by stressing the importance of protecting one’s work.

Herbert, Hubbell, Maxwell, and Burkan scheduled an initial meeting at Luchow’s Restaurant in New York City. As a result of bad weather, only five additional people showed up: Silvio Hein, Louis A. Hirsch, Glen MacDonough, Jay Witmark, and Gustave Kerker. These nine became founding members and scheduled a second meeting for February 13, 1914, at the Hotel Claridge in Manhattan. More than one hundred people attended that meeting, at which ASCAP was officially created.

The members elected Maxwell as the organization’s first president and Burkan as the first general counsel. ASCAP rented an office in the Fulton Theater Building on the corner of Forty-sixth Street and Broadway in New York City. From this scantily furnished base, the society set out to protect the musical compositions of its members, who paid $10 in dues for a year’s membership if they were writers and $50 if they were publishers. These fees remained constant for the next eighty years. Performance fees for works protected by ASCAP were to be collected based on adjusted gross receipts (after license fees and operating expenses were deducted) of a production or performance, and revenues were to be shared equally between the writer and the publisher. In its first year, ASCAP added the power to license foreign music through an agreement with the British Performing Right Society, also created in 1914.

Relying on the strength of the federal copyright laws, which specified that copyrighted musical works could not be performed publicly without permission of the copyright owners, ASCAP set out to license the public businesses where music was performed. The group first set its sights on restaurants and hotels. It issued its first blanket license (covering all ASCAP-protected music) to Rectors, a restaurant on Broadway, for an annual fee of $180. During that first year, the organization licensed an additional eighty-four hotels and restaurants in New York City.

ASCAP’s movement to license faced harsh opposition from hotels and restaurants. Lawsuits ensued between Victor Herbert and Shanley’s Restaurant as well as between John Philip Sousa and the Vanderbilt Hotel. In each case, the business profited from performances of the composer’s work without prior permission. The cases went to the U.S. Supreme Court, and, in 1917, Justice Oliver Wendell Holmes stated in the Court’s decision: “If music did not pay, it would be given up. . . . Whether it pays or not, the purpose of employing it is profit, and that is enough.” In essence, this decision gave ASCAP the right to exist and the right to license.

By 1921, the society had grown tremendously, as writers and publishers were quick to sign on as members. That year, ASCAP made its first distribution of royalties. The organization was truly operational.

Significance

Because of its ability to protect its members’ rights and to police public performances of music, ASCAP included some of the most influential members of the music industry. Early members included George and Ira Gershwin, Richard Rodgers, Oscar Hammerstein II, Cole Porter, and Duke Ellington. Even as other groups formed to compete with ASCAP, significant composers and publishers such as Aaron Copland, Igor Stravinsky, and Leonard Bernstein joined the organization. Eventually, the new genres of pop music and rock and roll added Henry Mancini, Burt Bacharach, Stevie Wonder, Smokey Robinson, Bruce Springsteen, and Lionel Richie, among many others, to ASCAP’s rosters.

In order to keep up with its growing membership, the society opened its first general licensing office, based in Charlotte, North Carolina, in 1933. This office oversaw the licensing of businesses within its district as well as checked on possible nonlicensed performances. ASCAP also opened district offices across the United States that helped to compile information on members. In 1948, the society published the member information it had gathered in its first biographical directory, which contained more than eighteen hundred entries.

As ASCAP membership grew and the society tried to license more businesses, several problems arose. Radio broadcasting entered the picture during the 1920’s. ASCAP found its first major challenge in keeping up with the newest technology. Radio stations resisted licensing attempts by ASCAP, which wanted to prevent radio broadcasts of copyrighted music without payment. Again ASCAP went to the courts, which deemed radio broadcasts to be public performances and therefore subject to licensing. In February, 1923, station KFI in Los Angeles became the first radio station licensed by ASCAP.

As radio networks and independent stations spread across the country, ASCAP found that policing music performances became more difficult. The society set up a sampling system in which it recorded programs and analyzed them for infringements without giving the radio stations any prior notice. This system resulted in a tremendous amount of data that needed to be processed, so ASCAP created a tabulation department during the 1940’s.

Although it had won early court battles, in the 1940’s ASCAP was plagued by lawsuits concerning radio broadcasting and accusations of antitrust law violations. Court decrees in 1941 and 1950 required ASCAP to offer businesses either a blanket or per-program license. A blanket license, the type most commonly used by radio stations, required the licensee to pay a percentage of total revenues plus a fixed sum for the right to use music on unsponsored programs. Per-program licenses, more prevalent among television stations, required payment of a higher percentage of revenues but applied only to programs using ASCAP music.

Also in 1941, ASCAP signed a consent decree stating that it would no longer act as the exclusive agency for its members. Fees would be collected only for the ASCAP songs played and only from the originating stations. This represented a great deal of savings for radio networks that broadcast the same program across the country through affiliate stations. ASCAP had tried to collect fees for each station airing a program, not just from the originating station.

ASCAP remained the only U.S. licensing and collection organization for copyrighted music for several years, but this ended in 1937 with the creation of the American Composer Alliance American Composer Alliance (ACA), started by Aaron Copland, who later became an ASCAP member. ACA became the chief organization joined by “serious” composers. The creation of Broadcast Music, Inc. Broadcast Music, Inc. (BMI), in 1939, however, affected ASCAP to a much greater degree. BMI started as an attempt by radio broadcasters to gain more control over their stations. In 1940, the contract between ASCAP and the National Association of Broadcasters expired. Radio networks across the United States dropped the ASCAP catalog of 1.5 million songs in favor of music that was in the public domain (that is, carried no copyright) in addition to new songs produced for BMI. This experiment lasted almost a year and resulted in the increased popularity of such copyright-free tunes as Stephen Foster’s 1854 composition “Jeanie with the Light Brown Hair.” ASCAP found itself forced into a corner. A 1945 court ruling that collaborative works could be licensed by either group furthered the competition between ASCAP and BMI.

The film industry also had its complaints about ASCAP licensing. In 1942, owners of film theaters filed suit against ASCAP for misusing its power by requiring film exhibitors to carry licenses. Because ASCAP carried rights to nearly all the music available, the theater owners had no options. Six years later, the courts ruled this licensing practice to be illegal. The ruling led the government to file more antitrust suits against the society for monopolizing music performance rights in a worldwide cartel. A 1950 court decision effectively ended ASCAP’s monopoly on the licensing of foreign music and opened the door for BMI. Also in 1950, another court required ASCAP to offer single licenses for film or television producers for all the music performed within a film or television broadcast.

In 1949, ASCAP began offering licenses to television stations. Although television greatly expanded the avenues available for music composers, it created problems concerning performance monitoring, as radio had done decades earlier. Television broadcasters resisted licensing. In the late 1960’s, the Columbia Broadcasting System Columbia Broadcasting System (CBS), which wanted a per-program license, gave ASCAP its biggest fight over television licensing. ASCAP wanted to issue a blanket license to CBS at a fee of $12,500 a month, with additional fees for ASCAP music performances. The debate raged concerning blanket licenses versus per-program licenses, even though earlier court decrees in 1941 and 1950 had required ASCAP to offer both. Early court rulings favored CBS; however, in the early 1980’s, the U.S. Supreme Court upheld ASCAP’s right to blanket license. Other lawsuits concerning licensing were filed after this ruling, and it appeared as though ASCAP faced a long battle over this issue.

The long court case with CBS occurred during the ASCAP presidency of Stanley Adams, who held the office of president from 1953 to 1956 and again from 1959 to 1980. He helped ASCAP to enjoy a period of tremendous success. New genres such as pop music and rock and roll found a youthful market, and the rise of country music called attention to the need for a Nashville district office, which was established in 1963. The television industry expanded rapidly and offered new avenues for composers in the form of commercial and theme or background music. Adams’s efforts brought ASCAP into the modern age. The society began to use computers and other new technologies to police the music industry more efficiently.

At the end of Adams’s presidency in 1980, ASCAP faced new challenges, including the licensing of the video market and cable television. The organization was successful in reaching a license agreement with the cable leader, Home Box Office (HBO), and the newest powerhouse in music, the MTV (Music Television) cable network. ASCAP’s commitment to keeping up with the latest technologies and their use of music was clear. If the technologies used copyrighted themes, tunes, or other musical work, ASCAP would seek to license them.

Even with all the controversy and court cases, ASCAP has had its proud moments. Members have won numerous awards through the years, including several firsts. Con Conrad and Herb Magidson won the first Oscar for Best Song for “The Continental,” from The Gay Divorcée, in 1934. Ira Gershwin became the first songwriter to receive a Pulitzer Prize in theater, for Of Thee I Sing (pr. 1931) in 1932. Cole Porter won the first Tony Award, for Kiss Me Kate (pr. 1948) in 1949. Other notable awards include the first Emmy awarded for music, which went to Walter Schumann for the theme to Dragnet in 1954, and the first Grammy awarded for Song of the Year, which went to Domenico Modugno for “Volare” in 1958. In 1959, when the practice of awarding gold records for sales was established, ASCAP members Lee Pockriss and Paul Vance were the first to receive the honor, for “Catch a Falling Star” (sung by Perry Como for RCA Records).

Other accomplishments reflect ASCAP’s commitment to its members, which has continued into the twenty-first century. (As of 2005, the society enjoyed a membership of more than 200,000 music publishers and professional writers, composers, and lyricists.) For example, the society offers financial help to struggling writers and publishers of music. Part of its ongoing mission is to promote interest in and growth of the music industry, as reflected by the scholarships and grants awarded by the ASCAP Foundation since the 1970’s. These are made possible by the donation to ASCAP of the rights to the popular songs “Take Me Out to the Ball Game” and “Shine on, Harvest Moon” by the widow of the man who wrote them, Jack Norworth; the royalties from these songs fund the foundation.

In 1985, the New York Public Library at Lincoln Center established the permanent archives of ASCAP and began allowing all interested individuals access to the organization’s history. The archives contain a wide range of items, including Irving Berlin’s piano, John Philip Sousa’s baton, Victor Herbert’s membership application, ASCAP’s first licenses, and photographs of influential members.

Despite opposition to its efforts, ASCAP carried on with its struggle to become the primary licensing and collection organization for the performance of copyrighted music. Without the efforts of the founders and early leaders of ASCAP, the composers, authors, and publishers of music likely would have lost control over their own work as the radio, film, and television industries expanded. American Society of Composers, Authors, and Publishers Music;publishing Copyright, music

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">Finkelstein, Herman. Public Performance Rights in Music and Performance Right Societies. Rev. ed. Chicago: Commerce Clearing House, 1952. A detailed description of copyright laws as they pertain to music and public performances. Includes information on how these laws affect ASCAP.
  • citation-type="booksimple"

    xlink:type="simple">Fornatale, Peter, and Joshua E. Mills. Radio in the Television Age. Woodstock, N.Y.: Overlook Press, 1980. A concise examination of how the radio industry responded to challenges posed by the development of television. Covers new formats that emerged in the 1950’s and early 1960’s.
  • citation-type="booksimple"

    xlink:type="simple">Jasen, David A. Tin Pan Alley: An Encyclopedia of the Golden Age of American Song. Rev. ed. New York: Routledge, 2003. A study of American popular music from 1886 to 1956. Focuses on songs and songwriters and the role of the big publishers. Provides a picture of the musical world in which ASCAP thrived.
  • citation-type="booksimple"

    xlink:type="simple">Krasilovsky, M. William, and Sidney Shemel. This Business of Music: The Definitive Guide to the Music Industry. 9th ed. New York: Watson-Guptill, 2003. A bible for the music business. A fine encyclopedia, with many well-written and lucid guides to all aspects of the music industry, historical and contemporary. Chapters on copyright, performing-rights organizations, and mechanical rights provide excellent introductions to the topics for the beginner.
  • citation-type="booksimple"

    xlink:type="simple">Meyer, Hazel. The Gold in Tin Pan Alley. Philadelphia: J. B. Lippincott, 1958. Traces the development of the music industry during the first half of the twentieth century. Includes a chapter on ASCAP and BMI titled “They’re Playing Our Songs.”
  • citation-type="booksimple"

    xlink:type="simple">Ryan, John. The Production of Culture in the Music Industry: The ASCAP-BMI Controversy. Lanham, Md.: University Press of America, 1985. Wonderfully informative about all aspects of the popular music business. Includes anecdotes, charts, figures, and a fine overview that encompasses theory and practicality in its handling of complex matters.
  • citation-type="booksimple"

    xlink:type="simple">Sanjek, Russell. From Print to Plastic: Publishing and Promoting America’s Popular Music, 1900-1980. Brooklyn, N.Y.: Institute for Studies in American Music, Conservatory of Music, Brooklyn College, 1983. Based on lectures, this seventy-page book offers insights into the music business.
  • citation-type="booksimple"

    xlink:type="simple">Sanjek, Russell, and David Sanjek. American Popular Music Business in the Twentieth Century. New York: Oxford University Press, 1991. A comprehensive and exhaustively detailed history of the subject cowritten by an insider who was there through much of the period. Provides a definitive summary of events.
  • citation-type="booksimple"

    xlink:type="simple">Sterling, Christopher H., and John M. Kittross. Stay Tuned: A History of American Broadcasting. 3d ed. Mahwah, N.J.: Lawrence Erlbaum, 2001. A detailed look at the broadcasting industries. Good coverage of the development of television.

U.S. Congress Updates Copyright Law

Squier Founds Muzak

Categories: History Content