WE SHOULD ALL THANK MR. HERBERT... AND JUSTICE HOLMES
"If music did not pay, it would be given up."
September 15, 2014
by Thomas Giannini, Attorney at Law
You probably have not heard of Victor Herbert - but you need to know about him. Born in Ireland in 1859, Victor began a successful career as a composer, cellist and conductor. He moved to the US in 1886, becoming a prolific musician and composer in the New York Tin Pan Alley scene. Victor was 'The Man'. He composed many Broadway operattas, two operas, a cantana and dozens of cello compositions, songs and choral compositions, however it was one of his marches that may have had the biggest impact on songwriters today.
While eating at the dining room in the Vanderbilt Hotel in New York City one evening (probably around 1914), Victor heard one his compositions, a march called "From Maine To Oregon", being performed by an orchestra employed by the hotel owner. Victor realized the hotel was profiting from his music by attracting paying customers. On a separate evening, Victor heard another of his compositions being performed by an orchestra in the Shanley's restaurant on Broadway. When the waiter handed him a huge check for his dinner, Victor stated "You've charged me for every item on the menu, apparently, and I am paying the bill? But how much are you paying me for playing my compositions?"
Victor believed this - the performance of his copyrighted musical composition in the restaurant, albiet without charge for admission - was an infringement on his exclusive right as the owner of the copyright to perform the work publicly for profit pursuant to the Copyright Act of 1909. In other words, "If you use and profit from my music, pay me." Can you blame him?
He sued. And lost. And lost again.
That is until he took his case to the U.S. Supreme Court. Famed jurist Oliver Wendell Holmes, Jr., saw the whole issue much differently then the lower courts. He reversed the lower court decisions, and noted that indeed there is an exclusive right of public performance with respect to individual songs performed in nondramatic excerpts. It wasn't relevant that the resturant didn't charge an admission. Justice Holmes stated:
"The defendants' [restaurant's] performances are not eleemosynary [for charity]. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order is not important.... If music did not pay, it would be given up. If it pays, it pays out of the public's pocket. Whether it pays or not, the purpose of employing it is profit, and that is enough." (emphasis added). Herbert v. Shanley Co., 242 U.S. 591 (1917).
Victor Herbert had won a landmark lawsuit. The case carved out the right that gave composers, through ASCAP, a right to charge performance fees for the public performance of their music.
ASCAP commissioned a statue in Herbert's honor in New York City's Central Park, erected in 1927.
Thank you Victor!
Thomas B. Giannini, CEO Ampslam