Phonorecords, the objects on which sounds are recorded, have been around in some form or another, cylinder or platter, since before the turn of the twentieth century. They had become a significant enough commercial commodity that by 1899 an estimated 3,750,000 copies were being sold each year. That number reached 27,500,000 per year by 1909, the year of the copyright law revision that gave music publishers the mechanical right (the right to reproduce a song mechanically, such as on a phonorecord).1 At that time the estimated number of phonographs in the United States was put at 1,310,000 and total sales of phonograph recordings since 1889 was estimated at 97,845,000. During the decade between 1899 and 1909 recordings had become big enough business, and the means of manufacturing had become widespread enough, that the labels began to feel the effects of unauthorized copying of their recordings. The labels sought relief from Congress in the form of legislation amending the copyright law that would allow copyrights in their recordings. At the same time, the music publishers were complaining that the copies of their songs embodied in the phonorecords should not be sold without some compensation to the owners of the copyrights in the musical compositions —a proposition the labels would have preferred to reject. The labels maintained, and the decision of the United States Supreme Court in
White-Smith Music Publishing Co. v. Apollo Co.2 backed up their position, that a recording that utilized some mechanical device such as a piano roll or cylinder or disc recording to reproduce the song, was not a copy of that song because it could not be visually perceived from the mechanical reproduction. The difficulty with that position was that the labels could not very well maintain that this non-copy of the song should be entitled to some copyright protection of its own. The labels became much more concerned over the prospect of having to negotiate a license for every song they recorded and abandoned the argument that sound recordings should be copyrightable. Then they could maintain, with straight faces, that recordings were not copies of songs and that, therefore, the music publishers and songwriters were not entitled to any right to object to those copies being sold. The labels said that unfair trade laws adequately protected their own rights in the recordings.