One of the strangest legal facts in the music business is that you don’t need permission to record and sell a cover song. Even stranger is how this state of affairs came to be.
Since the Copyright Act of 1909, musicians in the U.S. have had the right to publish a cover version of a song without permission of the copyright holder. This is extremely counter-intuitive considering all of the exclusive rights that come with owning a copyright. Nonetheless, it has been the law of the land for over a century. Why is this so and how did it come to be?
The Rise of The Piano Roll and The Aeolian Monopoly
An important fact to keep in mind is the year this law was passed, 1909. At this time, there was no way to duplicate sound recordings for mass consumption. There was no digital technology, nor any television, nor radio. Phonograph records did not become popular until after World War I. In only two ways could music be bought and sold back then: sheet music and piano rolls.
If you bought sheet music, you had to know how to play the piano and read music in order to hear the composition. If you couldn’t, you still could hear the composition if you owned a player piano. This required purchasing and inserting a piano roll into the piano and then, after starting it up, the piano would play the music for you.
Player pianos became extremely popular at the turn of the 20th century and their rise was a source of discontent for popular music composers. They worried that player pianos would erode public demand for sheet music, a vitally important issue for composers at the time.
Sheet music was the main source of copyright royalties for composers. Furthermore, player piano companies did not pay royalties for the songs they published on piano rolls. These companies argued that the rolls did not “copy” the original compositions. Piano rolls were scrolls of paper with holes punched out in patterns. These holes instructed the piano how to play a particular song. As such, they could not be ‘read’ by people and thus categorically different than sheet music.
The Creation of The ‘Mechanical’ Rate
As flawed as that logic sounds, in 1908, the Supreme Court sided with the player piano companies! In its opinion White-Smith Music Publishing Company v. Apollo Company, the Court held that because humans could not read player piano rolls, they were not in fact copies of the musical compositions they played.
This ruling inspired the Aeolian Company to try to create a monopoly on music publishing. They began to buy up as many song rights as possible and turn them into piano rolls. Aeolians competitors and composers across the country quickly complained to Congress about this attempt to corner the music market.
This state of affairs would last only a year before Congress would halt Aeolian’s monopoly attempt. The Copyright Act of 1909 mandated that all musical compositions be subject to a compulsory license. This meant that composers now had to get paid for every copy of their work printed up for sales. This also allowed musicians and performers to copy the songs of others ‘by mechanical means’ without having to ask permission. They only had to pay a statutory fee to the original songwriter and allow the composer ‘first use’ rights.
Conclusion: The Legacy of the Copyright Act of 1909
The creation of ‘the mechanical rate’ not only thwarted Aeolian’s monopoly, but also created a fruitful tradition in American popular music: the cover song. Without this law, some of the greatest music performances in history may have never happened, songs such as ‘All Along the Watch Tower‘ by Jimi Hendrix or ‘Heard It Through The Grapevine‘ by Marvin Gaye. Today, covers are as popular as ever and it is easier than ever for artists to publish a cover song. There are licensing agencies, such as Harry Fox, that make it very quick and easy to register for a compulsory license.
In retrospect, the rise of the player piano and the corporate greed of Aeolian are much to credit for cover songs as the act of Congress itself. So maybe the next time you enjoy listening to a cover song, remember you have the player piano and an overly ambitious company to thank for your music listening pleasure.