Because composers (and their publishers) control the right to broadcast and publicly perform their music, and because they do not have the time or means to monitor such usage themselves, they register their compositions with ASCAP (formed in 1914) or BMI (formed in 1939). Typically, ASCAP and BMI would offer blanket licenses to the various businesses (radio stations, concert venues) so that the outlet would pay a single fee for the right to play music by any composer registered with ASCAP or BMI. Based on radio playlists and concert lists, ASCAP and BMI would distribute parts of their licensing fees to the various artist copyright holders.
Article 1, section 8, clause 8, of the U.S. Constitution (1789) gives Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Copyright Act of 1790 was the first law of its kind enacted in the United States, granting protection to authors of books, maps, and charts for fourteen years, with the possibility of renewal for another fourteen years. The act has gone through many revisions to keep up with the times. The first general revision (1831) added printed sheet music and extended the protection period to twenty-eight years. The second general revision (1870) added artworks and centralized registration at the Library of Congress. Composers gained limited protection for the public performance of their music (primarily in music theater) in 1897. The third general revision (1909) extended the renewal period to twenty-eight years and added two provisions that would have a major impact on the industry: public performance for profit, which would become a major source of income for composers of copyrighted music; and compulsory licensing, which allowed anyone to make a new recording of a copyrighted composition (at two-cents royalty per item sold). Up until 1972 musical works had to be registered in the form of printed sheet music. In 1972 sound recordings became eligible for submission.2
THE RECORDING INDUSTRY
All sound-recording devices are based on the principle of capturing sound waves. In the acoustic era (until 1925), sound traveled into the wide end of a horn and set a stretched membrane at the narrow end of the horn into motion, transmitting the vibrations to a small needle (called stylus) attached to it, which drew traces into a malleable form (at first tin foil, then wax coating on a cylinder or disc) in concentric circles. This is analog recording: a continuous direct trace of the sound waves. For playback the captured traces were tracked by the needle, which set the membrane in motion, which in turn sent out sound waves through the wide end of the horn. Initially, cylinders, and then discs (in the 1890s), were the storage media sold by record companies, which also sold the machines to play them back.
Before sound recording, music was sold as a material commodity in the form of sheet music (containing music notation and lyrics).3 Consumers would purchase and play the music on their pianos at home, singing along. In the mid-nineteenth century hit songs by songwriter Stephen Foster were selling between 50,000 and 130,000 copies. By the late nineteenth century a hit could sell a million or more copies; Charles K. Harris’s “After the Ball” (1892) sold over 5 million copies. Annual production of pianos and player pianos in the United States peaked in 1899 at 365,000 and averaged 300,000 per year in the first two decades of the twentieth century.4
The first device to record sound was a phonautograph, patented in France in 1857 by Édouard-Léon Scott de Martinville, which traced sound waves onto a sheet of paper blackened by soot (see figure 3). The traces were meant only to be seen and analyzed, as there was no means to play them back.5 In 1877 Thomas Edison first demonstrated his phonograph, which recorded sound onto a rotating cylinder wrapped in tin foil, which could play back the sound. He received a patent the following year, and his investors formed the Edison Speaking Phonograph Company in 1878. The tin-foil recordings were not very durable, and the sound quality was poor, and so Edison moved on to the incandescent bulb. In 1887 Charles Tainter and Chichester Bell (Alexander’s cousin) demonstrated their graphophone (reversing phon-o-graph), which used more durable wax-coated cylinders, and the American Graphophone Company was formed. Edison responded and released his new gramophone later that year, and the Edison Phonograph Company was formed. Businessman Jesse Lippincott purchased interests in Edison’s two phonograph companies and American Graphophone and formed the North American Phonograph Company to corner the market. Lippincott leased rights to sell the machines, and the Delaware, Maryland, and DC franchise would eventually become the first of the major record labels that we know today: Columbia Phonograph Company.
In 1889 recorded cylinders were used in coin-operated phonographs (activated for a nickel), the precursors to jukeboxes. By 1892 a downsized U.S. Marine Band had recorded over a hundred selections for Columbia, sold for two dollars a cylinder (prices would drop over the decade). The cylinder shape prohibited them from being mass produced, and so artists typically recorded in front of five to ten machines, each recording one cylinder. Additional machines could be connected to each of the master machines, and so a single two-minute recording session could yield up to fifty copies. Artists would have to perform the piece over and over again to produce more copies.
Emile Berliner’s gramophone (patented in 1887) used a flat disc, which solved the problem of mass production. The wax master disc recording was electroplated and could then stamp out rubber (and later shellac) copies. In 1894 Berliner opened a factory in Baltimore and sold a thousand machines and twenty-five thousand records. With the help of inventor Eldridge Reeve Johnson, who developed an improved stable motor, the gramophone successfully competed with Edison’s phonograph, and in 1901 Berliner and Johnson formed the Victor Talking Machine Company, the second of the major record labels that is still around (later RCA Victor, now RCA). In the first decade of the twentieth century, three major record companies dominated: Edison (cylinders), Victor (discs), and Columbia (cylinders and discs). Annual production of recordings increased tenfold: from 2.75 million in 1899 to 27.5 million in 1909. Cylinders outsold discs at the beginning of the decade by two to one; by 1914 discs outsold cylinders by nine to one.6
In 1902 Victor made a portable recording machine, allowing them to record music around the world. That year Enrico Caruso, star of Milan’s opera house La Scala, made his debut recordings, the popularity of which prompted his move in 1903 to join the Metropolitan Opera Company in New York. Contracted to record exclusively with Victor from 1904 to 1920, he was initially paid $4,000 for the first ten sides and a royalty of forty cents for every disc sold. Caruso made over 250 recordings with Victor, earning several million dollars from them, making him one of the first international stars of the early recording industry. In 1903 the first royalty payments for performers were negotiated in a contract with Italian tenor Francesco Tamagno, at 20 percent of the retail price of each disc sold.
Until 1908 discs were recorded on just one side. Annual retail record sales peaked at $106.5 million in 1921. Retail record sales then dropped dramatically (in part because of the rise of commercial radio broadcasting in 1922); they began to recover after the advent of electrical recording (1926–29) and then sank to a low during the Depression of $6 million in 1933. Sales would not recover to its 1921 high until 1947 (Sanjek 1996: 62, 117, 120).
In the 1920s record companies discovered latent markets, including southern whites and African Americans, labeling the categories hillbilly (or folk) and race. The hillbilly market was later renamed country and western (or just country). The race category, which included spirituals, gospel, blues, and sermons, underwent many name changes: rhythm and blues (late 1940s), soul (1960s), black music (1960s–70s), and finally