Fred Waring and the Pennsylvanian Litigation

Fred Waring and his allies launched a number of lawsuits in the 1930s to prevent radio stations from playing their record; this post presents scans of three such case files, including filings, evidence, transcripts, and legal briefs.  Read the rest to learn more!

As I’ve mentioned here a few times, I have an article entitled Common Law Copyright coming out in the University of Cincinnati Law Review shortly, which will explore the historical and doctrinal background of the lawsuits over common-law copyright in older sound recordings being brought by Flo & Eddie as well as others.  One of the stories I discuss briefly in that article is the story of sound recording litigation from the 1930s.  I wanted to use this post to expand on that story a bit, and offer some of the primary sources I digitized as part of the research process.

The first sound recordings that could be played back were made in the 1870s, and the technology was commercialized effectively beginning in the 1890s.  In these early days the legal aspects of the various early sound reproduction systems were generally lumped in with another technology that developed at around the same time, the player piano, and in 1888 the Federal Circuit Court in Massachusetts held that programming a paper reel with punches for use in a player piano did not infringe the copyright of the musical composition which was played back from that paper reel.  In 1901 the DC Court of Appeals (now the DC Circuit Court of Appeals) held similarly regarding sound recordings, finding that a sound recording did not infringe the copyright in a musical composition.  In 1908 the Supreme Court affirmed these decisions in White-Smith v. Apollo, and in response the 1909 Copyright Act provided compulsory licensing provisions for “mechanical” reproductions of copyrighted musical compositions, including sound recordings.

At the time sound recordings were limited to live takes recorded acoustically, and as such there was not much attention paid initially to protection for the sound recording, with early litigation focused mostly on the music being recorded.1  No protection for sound recordings was explicitly mentioned in the 1909 Act, and Courts and the Copyright Office came to understand that the 1909 Copyright Act did not protect mechanical reproductions of musical compositions (i.e. discs or piano rolls) as being protected by copyright law.  Initially this was not a serious problem, since copying discs was extremely complicated in this era and making new recordings was comparatively cheap.  Indeed, the entire record industry flourished in this era, with over 100 million records sold in 1920, and 200 million sold in 1929.  However, radio was rapidly spreading during this period, and coupled with the Great Depression, the record industry would experience close to an extinction-level event.  In 1932, only six million records were sold, and only a few record companies managed to survive.

Radio and sound recordings had an uneasy relationship almost from the beginning, and in 1922 then-Secretary of Commerce Herbert Hoover used his authority under the 1912 Radio Act to ban large radio stations from playing phonorecords on the air.2  The 1912 Radio Act would be replaced by the 1927 Radio Act which included more limited regulatory powers, but the playing of records on the radio would remain controversial, and not just for its effect on record sales.  The most popular music of the era was what is now called “big band” jazz, and the leading bandleaders had lucrative contracts and sponsorships for radio shows.  If another station could just play their records, it would imperil their ability to commercialize their radio show.

A number of the bandleaders of the day were spurred to legal action, but none were more active than Fred Waring whose band “Fred Waring and the Pennsylvanians” was among the most popular musical acts of the 1920s and 1930s.  In 1932 he decided to cease all recording activities to prevent competition to his radio show from recordings.  At some point in this period he also became acquainted with the Philadelphia Attorney Maurice J. Speiser, who represented many creative artists and was a strong advocate for the rights of performers.3  In 1935 Waring and Speiser took two actions to advance their cause – they founded the National Association of Performing Artists (NAPA) along with Bing Crosby and other major performing artists,4 and they also worked with their compatriots to bring a number of lawsuits to assert their rights.5

Each performer brought suit in different areas, with Paul Whiteman bringing suit in New York, in the litigation that would lead to the RCA v. Whiteman decision.  Wayne King and Jan Garber brought suit in California, and the litigation led to consent decrees but no published disposition.  Waring first filed suit against the Philadelphia radio station WDAS in Pennsylvania state court, alleging they owed a royalty for playing music performed by an orchestra led by Waring, even though Waring had not written the music

The procedural history of this case and much else are discussed in my article.  What I wanted to share with this blog is the appellate case file from Waring v. WDAS, which I scanned after it was provided to me by the Pennsylvania State Library.  The casefile is surprisingly voluminous, and is easily readable since it is entirely typeset.  The main body of the casefile is a transcription of the argument before the state trial court, and Waring called many witnesses of seemingly marginal relevance.  Many, such as the famed classical conductor Fritz Reiner, were called merely to opine as to the merit of Waring’s musicmaking, to push forward the argument that there was something uniquely protectible in Waring’s interpretation of the music.

Of perhaps particular interest to copyright historians is Waring’s attempt to register his sound recording for copyright, and  the letter received from the Copyright Office denying his claim.  The response is found on page 151a of the record, and reads:

In response to your letter of July 29[, 1935], we point out that there is no provision in the Copyright Act for the registration of phonograph records. Furthermore, it was held in M. Witmark & Sons v. Standard Music Roll Co. (221 Fed. 376) that records are not “legible” copies and hence are not acceptable as deposits.

It should be borne in mind, however, that under section 1 of the Act published and/or unpublished music is amply protected and that the right to use music on phonograph records and other mechanical devices is specifically covered in section 1, subsection (e). Section 6 of the Act gives to the copyright owner the right to make “. . . adaptations, arrangements, . . . or other versions of works …” Hence, if your client has rights of this kind to protect, registration of his work entitled “Lullaby of Broadway” could be made either published or unpublished form, depending Upon whether or not “legible” copies have been placed on sale, sold, or publicly distributed. For procedure see Circular Letter 58.

Finally it should be noted that there is not and never has been any provision in the Act for the protection of an artist’s personal interpretation or rendition of a musical work not expressible by musical notation in the form of “legible” copies although the subject has been extensively discussed both here and abroad.

Other documents in the casefile include the Articles of Association of NAPA and WDAS’s ASCAP license, and a transcript of the proceedings before the trial cout.  Following the record, the casefile continues with the briefs of the parties to the Pennsylvania Supreme Court, which begin at page 190 and continue for roughly 100 typeset pages.  In these briefs we can see the earliest version of the arguments still being made today in the Flo & Eddie cases and other common-law copyright cases.

After a win at trial in Philadelphia, before affirmance at the Pennsylvania Supreme Court, Waring turned his attention to Richard Dunlea, owner of WMFD in Wilmington, North Carolina.  Because Waring was not a North Carolina resident the suit was brought instead in federal court.  The casefile (scanned by National Archives in Atlanta) is substantially less verbose than the WDAS file, but gives greater color, including showing how the interference with Waring’s sponsorship deal with Ford was a major impetus for the suit.

In 1939 Waring triumphed in the District Court, which held that Dunlea could not play Waring’s records with the legend indicating that they were not for radio play.  However, this triumph was short-lived, as both the North and South Carolina legislatures moved with alacrity to overrule this result by statute, and within three months of the Court’s decision, both states enacted statutes stating that any common-law copyright in sound recordings was abrogated in the state.6

Meanwhile, Whiteman’s suit was still proceeding in New York, and had triumphed before the Southern District of New York.  However, on appeal and following the intervention of RCA records, the cause of performers’ rights was dealt a severe setback by the decision of the 2nd Circuit Court of Appeals, which held that selling recordings commercially constituted “publication” and thus extinguished all rights at common law.  However, that decision only concerned New York common law, and the Waring v. WDAS decision remained effective in Pennsylvania.

In the aftermath of the Pennsylvania Supreme Court’s decision in the WDAS case, NAPA began negotiating licenses with radio stations like WPEN radio in Philadelphia, which agreed to pay NAPA $1,000 a year for a license to play recordings by artists represented by NAPA.  An example of such a contract is included in the casefile for NAPA v. William Penn Broadcasting et al (scanned by the National Archives at Philadelphia).  In that case NAPA sued WPEN’s corporate parent for failing to continue to pay royalties, and further brought suit against its sponsors.  However, the Court found that the advertisers were not liable to NAPA, and shortly thereafter the file shows that the case was voluntarily dismissed.  The casefile also includes a transcript of the evidentiary hearing from this case.

In addition to litigation records, the Fred Waring papers at Penn State University contain information about some of Waring’s attempts to protect his radio program through other forms of intellectual property.  In particular, a selection of Waring’s correspondence related to intellectual property  I scanned from this collection (uploaded with permission) contain a letter from counsel advising him that his attempt to register a trademark in “The Shortest Half Hour in Radio” would fail, since the Patent Office refused to register the titles of radio programs for trademark under the 1905 Trademark Act.  The letters also detail negotiations by Waring and associated with the owner of a German patent for a new method for making phonorecords (or, as he called them, radiograms). It is not clear if anything ever came of these negotiations.

Further Reading

  1. Certain cases like Fonotipia v. Bradley being an exception.
  2. The Rule is at Pg. 8 of the Radio Service Bulletin for October of 1922
  3. In 1934 Speiser translated Robert Homburg’s French text Legal Rights of Performing Artists into English, along with annotations.  I debated including a scan of this book, since it’s out of copyright (registered but never renewed), but I believe the original remains in copyright at least in France, and chose not to.
  4. according to testimony given by Speiser before Congress in 1947, NAPA members included “Paul Whiteman, Meyer Davis, Al Jolson, Eddie Duchin, Don Voorhees, Fred Allen, Connie Boswell, Noel
    Coward, Richard Crooks, Duke Ellington, Mary Garden, Benny Goodman,
    Jascha Heifetz, Lewis James, Andre Kostelanetz, Guy Lombardo,
    Ray Noble, Walter O’Keefe, Irra Petina, Dick Powell, Fritz Reiner,
    Fabien Sdvitzky,Nathaniel Shilkert, Lawrence Tibbett, Toscanini,
    Rudy Vallee, Victor Young, Efrem Zimbalist, and fully 800 other
    musicians, singers, and actors.”  Authorizing a Composer’s Royalty in Revenues from Coin-Operated Machines and To Establish a Right of Copyright in Artistic Interpretations, Hearing Date: May 23, Jun. 4, 9, 11, 16, 18, 23, 1947, HRG-1947-HJH-0012.
  5. They also attempted to establish such a right by federal statute, having bills introduced by Pennsylvania Congressmen repeatedly, including HR 10632 in 1936, HR 5265, HR 304, HR 7420 in 1937, HR 4871, HR 6160 (reintroduction after sponsor’s death) in 1939, HR 9703 in 1940, HR 3997 in 1942, HR 1570 in 1943, HR 3190 in 1945, and HR 1269 & 1270 in 1947.  These bills never went anywhere.
  6. These statutes were subsequently interpreted to only relate to performance/broadcast, and that record piracy was infringement of common-law copyright.

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