U. S. v. ASCAP

Round No. 1 was Radio's when it persuaded the Federal-Government to charge the American Society of Composers, Authors & Publishers with violation of the Sherman Antitrust Law (TIME, Sept. 10). Round No. 2 came in November when ASCAP countered with a driving defense, filed in behalf of its 1,015 songwriters and publishers. For the use of its members' music ASCAP now demands a 5% share of broadcasters' net receipts. Radio claims that it would be starved without the millions of songs which ASCAP controls. But Radio objects to ASCAP's price and to the terms which ASCAP has been able to dictate.

Fortnight ago in a stifling Manhattan courtroom the fight began in earnest. The Government described ASCAP as a gigantic music trust, unreasonably suppressing free competition in interstate commerce. Prosecutor Andrew W. Bennett made ASCAP seem exceedingly high-handed by showing that its general 5% license fee preyed even upon non-musical programs, that ASCAP collected 5-c-out of every $1 that broadcasters received for Father Coughlin's preachings. "Oppressive" again was the way the Society charged an electrical transcription fee ranging from 25-c- to 50-c- for each broadcast of a record. ASCAP's defense was that the fee had been established to "save" songs until sheet music and phonograph records had their chances to sell.

Round No. 3, which ended last week, was a victory for ASCAP. Though the Government had insisted on beginning the trial this month, its witnesses wavered so under cross-examination that it was glad to adjourn to bolster up its case. Witness William J. Benning, musical director of Radio Station WTMJ in Milwaukee, asserted that he would be unable to operate without the popular music in ASCAP's catalog. ASCAP controls many an orchestration where it does not control the original tune. Milwaukee's Benning admitted that in such cases his station chose to use ASCAP's products rather than pay the price for special arrangers.

ASCAP's chief lawyer is smart Nathan Burkan, friend of the late Victor Herbert, who founded the Society in 1914. Herbert's aim was to prevent song-pirating in theatres and restaurants. Most songwriters he knew were too indigent or too careless to look out for their own pocketbooks. A big organization was needed to bargain, do the necessary detective work. When Radio appeared and popular sheet-music sales suddenly slumped some 75%, ASCAP was ready for action.

Lawyer Burkan claims that ASCAP controls only 3% of the current musical copyrights. (Unfortunately for broadcasters, the 3% represents the popular tunes most in demand.) The Government has contended that music is a physical thing--a commodity which is transmitted from State to State. Burkan's persistent retort has been that music is "intangible and incorporeal." Lawyer Thomas Day Thacher. U. S. Solicitor General under Herbert Hoover, entered the trial to argue that ASCAP existed only to protect the rights of composers and lyric writers, pooh-poohed the idea that the organization was potent enough to dominate an industry which includes such interests as American Telephone & Telegraph Co., General Electric, Westinghouse, Radio Corporation of America.

Lawyer Burkan, born 55 years ago in Rumania, can become as impassioned over songs and songwriters as he was when he lately pleaded for the maternal rights of Gloria Morgan Vanderbilt. Because Victor Herbert was his friend, the ASCAP cause became so dear to his heart that he served it for seven years (1914-21) without pay. Competition between songs is absurd, according to ASCAP and its shrewdly sentimental lawyer. "A person desiring to hear 'Mother Machree,' " says Mr. Burkan, "is not satisfied with and will not accept a rendition of 'A Kiss in the Dark.'

The court contest over the legal character of ASCAP, with a long summer adjournment, will doubtless run well into the autumn. Whatever the result, chances are that there will be two more rounds, one in the Circuit Court of Appeals, another before the U. S. Supreme Court.

Before that tribunal Lawyer Burkan has already won one great victory for ASCAP. In 1917 when restaurants and hotels were the principal pirates of copyrighted music the late Justice Oliver Wendell Holmes laid down this dictum: "If the rights under the copyright are infringed only by a performance where money is taken in at the door, they are very imperfectly protected. ... 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."

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