Talk presented at Conference on Copyright in the Global South organized by The Copy South Research Group
Rio de Janeiro, June 2010

Making Music A Racket*

In 1911 “Alexander’s Ragtime Band”, a song composed by Irving Berlin, became a big hit in the United States. There is some evidence that Berlin borrowed (to use the polite term) the music from a song written by Scott Joplin which had been submitted to Berlin’s publisher.1 In any case, the song made explicit lyrical reference to a musical style, ragtime, that had been created by African-Americans, was associated with them in public consciousness and was enjoying widespread popularity at the time. Meanwhile, also in 1911, “The Preacher and the Slave” was composed by Joe Hill, using the melody of the well known Christian hymn, “The Sweet Bye and Bye” 2. Hill was a revolutionary unionist, member of the Industrial Workers of the World and already well-known as a writer of songs for the workers’ struggle. “The Preacher and the Slave” was a parody, making deliberate and obvious use of another composition as part of its own message. That these two songs became popular at the same time is both an indicator of the way music was then developing in the US as well as the conflicting interests involved in making it. What they had in common was that they were popular in the sense that many people heard and sung them. But “Alexander’s Ragtime Band” was made popular-meaning it was promoted and sold to the populace while “The Preacher and the Slave” was already popular because it arose from within the populace itself. Perhaps more importantly, Hill’s song was meant to serve the interests of the people while Berlin’s was meant to serve his own and his publisher’s. Leaving aside the musical merits of either song, their creation and use were and remain diametrically opposed.

Berlin himself went on to fame and fortune whereupon, in 1920, he wrote his “Nine inviolable rules for writing a successful popular song”. The last two summarize the rest:

“8.Your song must be perfectly simple…
9.The song writer must look upon his work as a business…” 3

Hill was executed by the State of Utah on false murder charges because he was a militant labor leader and songwriter of the people. His songs are played to this day throughout the world and his example is an inspiration to all who struggle against suffering and injustice.

There are several conclusions one should draw from this comparison. First, is that the source of both songs in question was the vast reservoir of music circulating widely among the American people at the time. It is no exaggeration to say that this was an inexhaustible resource including diverse traditional forms from Africa, England, Ireland, Scotland and other European countries as well as religious and classical music both ancient and contemporary. Much of this had no known author and was developed through what can be called the folk process-taking an existing song and modifying it in an endless series of additions and subtractions made anonymously by participants in the process. Needless to say, copyright played no role in the folk process. In fact, copyright had only recently become significant to music making when Berlin wrote “Alexander’s Ragtime Band”. This should convince us that the American people did not need music written for them, they were making it themselves. Furthermore, much of this came from materially impoverished workers and farmers who were nevertheless musically rich. Finally, as has ever been the case in the United States, the particular role of African American music-in this case ragtime, a precursor of jazz-was fundamental to anything the world has come to know as “American” music. Of the many injustices done by the music industry in particular and capitalism in general none are more obvious and egregious than those done to black people and their musical legacy. In fact, this is so well known by anyone vaguely aware of American history and culture that it is astonishing that the music industry can still fool people into thinking it is some innocent, neutral force serving the public good.

Yet that is precisely how in 1909 publishers presented themselves when lobbying for the passage of the United States Copyright Reform Act. In a pattern that has been repeated ever since, appeals were made, not on the basis of the publishers’ financial interests but on the basis of the rights of composers and the benefit to the public of encouraging composers’ creativity by financial reward. But this concealed the fact that very few composers actually supported the Copyright Reform Act. Indeed, FW Hedgland, an inventor of musical instruments, testifying before the congressional committee considering the bill, said he had “failed to find a single, solitary letter from any one composer petitioning or asking for protection under a measure of this kind.” Furthermore, publisher Isidore Witmark “…tried to marshal the support of the five or six thousand aspiring songwriters whose works his firm had rejected in recent years, by sending each one a letter suggesting his or her song might have been accepted for publication if not for the phonograph and piano roll businesses, whose reckless and opportunistic exploitation of others’ music-free of charge-handicapped publishers’ growth and ability to acquire new songs. He urged the songwriters to write their elected representatives to demand a revision of copyright law.” 4 The point here is obvious and more relevant now than ever: copyright was not about music or even about rights. It was about publishers gaining state sanction, the legal enforcement of laws protecting capital investment and guaranteeing the highest possible return. This capital investment was not in paying composers but in promoting songs and their performance in public by famous singers or orchestras. The real aim of the music industry in the United States was and is to control, monopolistically, the manufacture of celebrity and the use of public space. In order to achieve this they needed to enlist composers in their cause. To that end, they were happy to offer composers a royalty payment that left the lion’s share of profits with the publisher. A leading music producer, David Rubinson, has likened this to the sharecropping system in all essential features. 5

Other parties to copyright reform were the manufacturers of three technologies, namely, the player piano, the phonograph and the radio. Initially, the manufacturers of these devices opposed copyright reform because they needed recorded music in order to sell their products and thus rejected any impediment to acquiring it. They were joined in this opposition by the leaders of orchestras, which were very popular at the time, who contended that once they’d bought the sheet music they were entitled to use it as often as they liked without further payment. It need hardly be mentioned that this scenario has been repeated in the case of the iPod and with similar consequences (Steve Jobs of Apple cutting a deal with the majors to have access to their copyrighted material in order to attract customers for his music player). At the time, however, the publishers won out and over the next decade were able to establish all the structures that have remained unchallenged until the advent of file sharing. One outstanding example of how this actually took place is the story of Ralph Peer and the Victor Talking Machine Company, manufacturer of the victrola or phonograph.

Ralph Peer was a recording engineer who’d already made a number of field recordings in the southern United States when he made a deal with Victor to work for free in return for the copyright to the recordings he made for them. Victor happily agreed seeing great value in having more recordings to make their machines attractive, particularly to working people who did not have the electricity needed to play radios. Many such people were living in the rural South with which Peer was familiar. What Victor didn’t see and Peer did was that a lot of music was written and performed by these very people and, most importantly, there was value in the copyrights to the songs. In 1927, Peer went to Bristol, Tennessee, advertised in the local papers that he was holding auditions and musical history was made. He recorded many musicians, amateur and professional, playing a wide range of songs, some traditional, others original. To the performers he chose, Peer paid $50 and a 2 and 1/2 cent royalty for each copy sold. A couple of these performers went on to become famous-the Carter Family and Jimmy Rogers. In one quarter of one year, 1928, Peer made $250,000 from the copyrights he controlled.6 This exemplified the model on which the music industry was based and continues to be to this day. A few artists become famous, most do not, a publisher becomes rich.

Properties of Music against Music as Property

But there is more to this story. In 1952 Folkways Records released “The Anthology of American Folk Music”. This was a peculiar item for a number of reasons. First of all, its 84 songs had been selected by one man, Harry Smith, from his personal collection of over 10,000 78s acquired largely from disused or discarded stock in music stores and other outlets. Secondly, it drew to a large extent from the recordings Ralph Peer had made between 1927 and 1932. Third, the entire collection was a pirate copy according to copyright law since no permission was sought or granted for use of the music or the master recordings. Now this collection is considered a major contribution to musical history, a treasure trove plumbed by the likes of Bob Dylan and the Grateful Dead. It has been reissued to great acclaim by the Smithsonian Institution in Washington. Smith was even given a Grammy award. But its origins bear striking similarities to those of music lovers who use the internet to compile their own “Anthologies” today. Moreover, Smith sold his collection along with his detailed annotation of each song to Folkways Records because he was in need of funds. Did he rip off the composers of the songs? Was he a pirate or was he, instead, a devotee of music serving the common good? Remember, by the time the Anthology was compiled the original recordings were gathering dust, even the medium on which they had been released was by 1952 almost obsolete. (the 78 was being replaced by the 45 and the 331/3 LP) What Smith and Folkways Records did was in fact a resurrection of timeless music that in the hands of the music industry had been turned into a passing fancy to be enjoyed briefly and discarded.

The recordings on the Anthology show that the music industry was perfectly happy to record and release music not made in New York by songwriters such as Irving Berlin if it could make a profit. “Thar’s Gold in Them Hillbillies” was the title of a 1938 magazine article reporting that talent scouts working for Columbia, Victor and Okeh Records had been scouring the South for music that could be packaged and sold.7 This formed the basis of distinct musical categories for white and black people-namely Hillbilly (later Country&Western) for whites and Race records (later Rhythm&Blues) for blacks. What it did in all cases, however, was to emphasize the novelty of every release, promising new songs to replace the old ones on a weekly basis. Even when they were identified as “Old Time Music “or “Old Familiar Tunes” it was the recorded medium itself that was being sold, record players and radios proffering modernity to their purchasers. Since much of the music on the Anthology was in fact old music, its novelty was artificial-indeed, oldness and familiarity were themselves being marketed as novelties. But no matter, once a song or performer had exhausted its lifetime as a profit making unit it was discarded and replaced by the next release. Moreover, it entered a broader market that had already substantially broken down the regional and ethnic barriers subjecting musicians to the demands coming from New York. And this impacted music in particular ways.

For example, Irving Berlin and others of his ilk were not only calling songwriting a business, they were quite deliberately narrowing what a popular song’s musical content should be. In a word, popular music should be entertainment, systematically excluding any reference to controversy or conflict of a social nature except to the extent that it was patriotic or extolled vague moral truisms. Not only did this stance pit the music industry against songwriting such as Joe Hill’s which had an overtly political purpose, it excluded entire legacies of music from both the working classes as well as composers of “serious” or art music that expressed the full range of lived experience. Indeed, the characteristics of authentic music of the people everywhere is that it expresses three conditions of life, namely, suffering, struggling and rejoicing. Diversion and escape only become its dominant features when it is made on commission for the music industry and for advertising. Evidence of this is found both in Smith’s Anthology and in how this Anthology was taken up by young people during the decade following its release.

Participants in what came to be known as the Folk Music Revival considered the Anthology a “Bible” of sorts, partly because one could hear in it a way of life that was a rapidly receding memory. The migration of millions of black and white people from the southern US to the factories of the North following the Great Depression and during WWII changed America profoundly and this was evident in the music America made. But what is of particular interest here is that a young generation began listening to the music of the Anthology as being genuine, not fake; more authentically popular because it was non-commercial unlike the pop music being sold to them by the music industry. And this, in spite of the fact that it had originally been recorded for commercial purposes. This is clearly ironic but not in the sense that young folk revivalists were deluding themselves about the sources of their “Bible”. No, the irony lies in the music industry stumbling onto timeless music, priceless to those who loved it, and attempting to turn it into fashionable consumer goods which quickly become dated and of no further interest. As young people became increasingly aware, the music industry was not their friend. It was waging a relentless campaign to gain control of what is ultimately an ungovernable force, namely the music that provided young people such inspiration. We mustn’t forget that the business has never been completely successful in achieving its ends. Indeed, the great revolutionary storms of the Sixties were characterized by among other things, a conscious and vehement rejection of the musical and commercial norms established by the music industry in the first half of the 20th Century. Though rock and roll and other forms were ultimately recuperated and used to strengthen the grip of the music industry itself does not alter the fact that in musical terms the mold was broken. In fact, the Sixties were the death knell of Tin Pan Alley, the rejection of Irving Berlin’s model of songwriting and even the overthrow of the hierarchy which put classical music at its pinnacle and rock and roll in the gutter. This happened, in part, because certain characteristics of music and music making inevitably pit it against attempts to turn it into a marketable good.

First, music making is a collective activity. Music is most often made in groups, from small bands to large orchestras. Even when an individual composes and performs alone, there is always the audience to consider. More importantly, music always involves many participants when one considers those who trained the musician, those whose music inspired the musician and those who will be influenced by the musician in the future. This is why music necessitates the forming of communities. That is, communities of practitioners and communities of shared interest. The designation author or composer made by copyright law and industry practices is a distortion of the collaborative nature music making rests upon. Besides, this move was made to accomplish two interdependent objectives having nothing to do with music as such, namely, to replace the virtually limitless supply of already existing music with a disposable, manufactured unit needing constant replenishment (i.e.: the pop song) and to firmly attach the individual to the manufacture of this product. This was not only accomplished by the propaganda used by Irving Berlin and other Tin Pan Alley songwriters. It was also done by outright fraud. One classic example of this is in the case of Chuck Berry’s first big hit, “Maybellene”. Johnnie Johnson, pianist on the recording session for the song recalls, “It was an old fiddle tune called ‘Ida Red’. I changed the music and re-arranged it, Chuck re-wrote the words, and the rest, as they say, was history.”8 Unfortunately, it is not history, either in being a thing of past or in being taught in history or music classes. To begin with composer’s credit was given to Alan Freed, a popular disc-jockey, in return for Freed’s plugging the record on his show. Secondly, Johnnie Johnson was given no credit whatsoever. Third, the song itself was “an old fiddle tune” of unknown authorship. To make it become a profit-maker it had to be appropriated: a composer had to be assigned to it. And it had to be promoted which meant turning a promoter into a composer in order to create a demand for the song. The fact that Chuck Berry was and is an extraordinary songwriter and pathbreaking guitarist does not diminish the debt he-and all musicians-owe to their musical forebears and the wealth of material from which they draw to make their own contribution. Perhaps even more significant is that the millions inspired by Berry’s music began making their own, by and large rejecting the notion that it had to be made for them by professional songwriters. This led to what was undoubtedly a musical renaissance not only in the US but in many parts of the world.

A second characteristic pitting it against commercial constraints is that, like all the arts, music can be a rival of the State. From the legislation of morals to the mobilization of movements, music has often threatened the legitimacy of authority. There is no clearer example of this than the role music played in the revolutionary Sixties, certainly in the United States, but also in Brazil in the case of Tropicalismo and its leading proponents Gilberto Gil and Caetano Veloso. Contrary to the music industry’s insistence that music’s sole function be entertainment, music’s function is to instruct. It tells people what to do and how to be. If this were not the case, why are there parental advisory stickers on CDs? Why is music everywhere under surveillance, the subject of laws governing its performance, including censorship? Governments are more than willing to accuse and to punish certain musicians of corrupting the youth while simultaneously using music to further their own agendas. Thus, we find that music can also be a servant of the State. The State has long used music to galvanize support for its rule and as a weapon against its enemies. National anthems and patriotic songs are obvious examples. But we also have the recent case of the US military using music as a means of torture.9 There has even been speculation that they may be liable to paying royalties for such use of music. Whatever the outcome, the very idea that music’s main function is as a commodity or that it is in any reasonable sense a piece of property is rendered absurd by prevalent uses to which it is put everywhere and on a continuous basis.

There is yet one further point to make in this regard. Music’s function as instructor includes the instruction it requires for its own maintenance. In other words, there is the craft which must be learned. Here, the exchange of goods plays a decidedly secondary role. Music can be made by anyone, even small children, yet, it has for thousands of years been a highly developed craft. This requires disciplined commitment to acquiring skills as diverse as virtuosic performance and instrument building. While there may be goods exchanged in these processes there can be no substitute for the Good which is mastery of the craft. This of course applies to all crafts and not to music alone. But it takes on a special significance when one considers a property of sound. While music may be fixed in a piece of paper, vinyl record, or an audio file it cannot be heard unless it actually moves air as it enters and passes out of existence. It does not exist as a static object . Its ontological status is transitory and ephemeral, always in motion, never at rest. In addition, like the air through which it moves, music is an inexhaustible resource. Not only is there more being made all the time, what already exists is for all practical purposes of infinite proportion. This is not only a question of quantity, though. It is also the quality of music, that it can under certain conditions provide experience of the infinite. This, above all, is what the craft of music instructs its disciples to seek even if it takes a lifetime.

These characteristics present a serious obstacle to applying legal concepts such as ownership and property to music. They pose a logical and practical threat to the elaborate legal edifice upon which copyright rests and corporate practices rely. File sharing is only the most obvious and predictable result of what people have been doing with music from time immemorial. How did any tradition of any kind occur if it was not passed from person to person and from generation to generation, its defining characteristic being shared experience? This is among the reasons music was made the principal focus of attack at the turn of the 21st century with the notorious Napster case. What has become increasingly clear, however, is that the controversy over file sharing was in fact a stalking horse and a tool for bullying the public into supporting the expansion of Intellectual Property regimes to include everything from the songs we sing to the water we drink to the human genome itself. What my brief excavation here has sought to show is that the claims of the music industry and defenders of copyright are not supported by the evidence. The evidence reveals instead a long history of deceit which has produced intractable conflicts from which lawyers, politicians and large corporations have profited and the general public has suffered. But this is not all.

Requiem for Dead Ideas

There are certain lessons we can learn from music and from history that may help change things in the future. The music industry was constructed on the basis of a fictitious community of interests needing to be constantly reinforced by appeals to the public interest combined with lavish rewards to some and ruthless suppression of others. Moreover, this fiction was maintained to prevent a genuine community of interests from asserting itself. The keystone of this fiction is the identification of the composer with the publisher and music with property. Now it would appear to be common sense that composers join with their fellow musicians and with their audience as equal partners in a common endeavor. It would appear that each needs the other in an exchange of mutual benefit. But this is the solution and not the problem. The problem is that for more than a hundred years and spearheaded by the political and cultural influence of the United States, all of us have been led to believe that the solution is the problem to which the problem is the solution. In other words, composers have to protect themselves from being ripped off by other musicians and an uncaring, selfish public. In this scenario the publisher suddenly appears as the saviour to whom the composer should be grateful. This turns things upside down and inside out making it impossible to address legitimate concerns in a constructive manner.

To begin with what concerns most music makers be they composers, performers, instrument builders or technicians is credit and just compensation. Credit and just compensation are not equivalent to the ownership of an object such as a piece or performance of music. They are principles in their own right corresponding to historical facts and the necessity for maintaining living practitioners of a craft. It is important to know how and by whom creativity was expressed in particular contributions to music. It is vital that musicians be supported in making music. But it is precisely for these reasons that credit and just compensation are in conflict with current structures which take the greatest portion of credit and compensation and hand them over to corporations which perform no function necessary to the making and enjoying of music. Instead, these corporations invest in expanding their dominance of public space. They do this by advertising stars and hits at the expense of the vast majority of music makers and the public at large. The fact that many people consume such stars and hits is no argument in their defense, bad ideas are often held by many people before they give way. An obvious example is slavery, a legally sanctioned institution in which many people once believed.

New structures are needed that would ensure that credit and compensation are awarded fairly. These require that people act as citizens and not as consumers. Political decision-not the market’s invisible hand-must determine how best to employ society’s resources. This already happens to a limited extent in the case of classical music and other arts considered to be our heritage. While at the present time this is narrowly confined to a cultural elite it nonetheless puts the lie to the idea that we need big business to make great art. It also offers possibilities for cooperative effort on the part of a wide range of social actors once we take responsibility out of the hands of the so-called free market and place it firmly in our own. Time does not permit going into details here. But suffice it to say that there are numerous proposals readily available that indicate a direction forward. The main obstacle, of course, are habits of thought and the music industry itself.

In closing I would like to add that If sharing is a crime then ownership is a prison. If musicians are cops protecting their precious property then audiences are thieves since they take possession of this property every time they listen to it. But this is a dialogue of the dead. Dead ideas, dead institutions, dead weight. Fortunately, music is alive and being shared. Let’s live!



*The title of this piece is obviously a play on words. It was inspired by the title of a highly influential book from which the following quote was taken: “What you sing and whistle, then, is…the result of a huge plot-involving thousands of dollars and thousands of organized agents-to make you hear, remember and purchase. The efforts of song promoters assail our ears wherever we go, because it is the business of this gentry to fill the air with music.” Isaac Goldberg, Tin Pan Alley-A Chronology of the American Popular Music Racket, John Day Co. 1930

Even more to the point, the story of Scott Joplin, whose Maple Leaf Rag of 1899 was the first instrumental piece to sell over a million copies of sheet music and the first composition for which a composer was paid a royalty, demonstrates in all its complexity how the copyright system simultaneously rewards and punishes those who fall within its purview. Joplin was paid $50.00 and the unprecedented one cent per copy royalty for his composition by John Stark & Son, a publisher. So, on a million sales Joplin earned $50.00 plus $10, 000. If John Stark & Son charged 5 cents a copy they made $40, 000. Plus they owned dozens, even hundreds of other songs while Joplin had only his own music which, soon enough, nobody wanted to publish. See:

2 “The Sweet Bye and Bye” was in fact a copyrighted song. Published in 1868, its music was composed by Joseph Webster and it’s lyrics by S. Fillmore Bennett

3 Frank Ward O’Malley, “Irving Berlin Gives Nine Rules for Writing Popular Songs,” American Magazine, Oct. 1920, 242, emphasis in the original. quoted in Selling Sounds, David Suisman pp 45-46

4 Witmark and Goldberg, From Ragtime to Swingtime p300 quoted in Selling Sounds, David Suisman pp163-164

5 Conversation with author. David Rubinson produced world renowned albums as diverse as Taj Mahal and Tower of Power. He was also the manager of artists such as Herbie Hancock and Narada Michael Walden

6 Selling Sounds, David Suisman p.175

7 Notes on Harry Smith’s Anthology, Neil V. Rosenberg, Smithsonian Folkways Recordings (the magazine was Colliers)


9 also see this link for musicians’ protest of torture


Isaac Goldberg & George Gershwin, Tin Pan Alley a Chronicle of the American Music Racket, John Day Co. 1930

David Suisman, Selling Sounds, The Commercial Revolution in American Music, Harvard University Press 2009

Harry Smith Anthology of American Folk Music, Smithsonian Folkways Recordings 1997

Michael Denning, The Cultural Front, Verso 1997

Richard and JoAnne Reuss, American Folk Music and Left Wing Politics, Scarecrow Press 2000

Pete Seeger, Where Have All The Flowers Gone, Revised Edition, Singout! Publications 2009