On a rain-soaked night in October 1913, an Irishman, a Scotsman, and a Romanian-born Jew walked into Lüchow’s Restaurant, the German sausage and schnitzel emporium on Manhattan’s East 14th Street. The punch line? The dinner those three European émigrés shared on that night 100 years ago set in motion a chain of events that has been shaping and reshaping the sound of American popular music ever since.
Victor Herbert was the English-speaking world’s preeminent composer of light opera. George Maxwell was the American representative of the G. Ricordi music company of Milan, then as now publisher of the grand operas of Giacomo Puccini. Nathan Burkan was Herbert’s good friend and lawyer, and at age 35 America’s leading expert in copyright law. The half-dozen others who braved the elements to attend were composers of theatrical music little-remembered and only rarely heard today, along with their principal publisher, Jay Witmark. But the list of no-shows that evening (dinner had been catered and the tables set for 35 expected attendees) included Irving Berlin and Jerome Kern, who would be among the earliest and most conspicuous beneficiaries of the evening’s topic of conversation, the establishment of a means for collecting royalties for the public performance of musical compositions in the United States.
There was no legal impediment to what the group wanted to accomplish. The Copyright Act of 1909 gave the owners of copyrights in musical compositions the exclusive right of “public performance for profit.” But the practical challenges of enforcing this right against thousands upon thousands of infringing performances, each one in Burkan’s words “fleeting, ephemeral, and fugitive,” were daunting. In Europe, as composers of international standing like Herbert and Puccini appreciated, the problem had been solved through the organization of performing rights societies which pooled a multitude of musical copyrights, licensed them to public performance venues on a blanket basis, and distributed the royalties in proportion to each piece’s popularity.
Burkan brought to Lüchow’s a translation of the bylaws of France’s Société des Auteurs, Compositeurs et Editeurs de Musique, which the group dissected line-by-line, debating long into the night how the French system could be adapted for the United States. Four months later the conversation that began at Lüchow’s culminated in the establishment of the American Society of Composers, Authors, and Publishers—ASCAP—with a charter membership that read like a who’s who of early 20th Century popular music, including Herbert, Berlin, Kern, George M. Cohan, John Philip Sousa, Otto Harbach, Harry von Tilzer, and nearly 90 others.
ASCAP’s efforts to license public performances initially met with massive resistance. But after Justice Oliver Wendell Holmes, writing in 1917 for a unanimous Supreme Court, held that “public performance for profit” was not limited to concerts or shows where music is the main attraction and admission is charged to hear it, but also included the even more widespread incidental use of ambient music in commercial establishments such as restaurants and hotels—a ruling that was eventually applied to movie theaters and, most important of all, radio broadcasting—ASCAP became a potent force indeed, with public performance royalties soon becoming songwriters’ most important source of income.
The impact of this change went far beyond simply raising their modest standard of living. It also changed the course of popular music. When ASCAP was created, the popular music business was still dominated by the group of New York-based publishers known collectively as Tin Pan Alley. Their profits came from the sale of printed sheet music, and their target consumers were amateur, social musicians—parlor piano players, barbershop quartets, and the like. The songs they favored were simple ones, easily learned and requiring no great skill to perform satisfactorily. “Take Me Out to the Ballgame” of 1908 is perhaps the quintessential Tin Pan Alley tune most often heard today, almost always as a convivial if somewhat grating group-sing. To publishers long in the habit of paying, directly or indirectly, for professional plugs to advertise sheet music, the prospect of reversing the time-honored flow of money by collecting royalties for professional performances was anathema.
But with the rise of broadcasting and ASCAP, performance royalties soon surpassed sheet music sales, and songs were being written for the professional, not the amateur. In the 1920s, the Tin Pan Alley era gave way to the days of the Great American Songbook. The best work of Berlin and Kern was still to come, and the second generation of ASCAP members included the Gershwins, Harold Arlen, Rodgers & Hart, and Cole Porter. So vast were the musical departures of these prodigious talents from the simplicity and instant familiarity of Tin Pan Alley, it is bracing to be reminded, a vocal segment of their contemporaries didn’t get it at all. Writing in 1934, music editor Kenneth Clark confidently predicted that the popular songs written after 1925 would not last: “The trouble,” as Clark saw it, “is that too many of the lads who now write songs really know something about music.” Others accused them of killing off melody in favor of primal rhythm, as in Douglas Gilbert’s 1942 remembrance of George Gershwin. “The zenith of his talent was a death blow at melody,” Gilbert wrote. “Its sentiment was pseudo, mocking, critical, its essence was mental; its technique, rhythm. It is robot music in relation to the pop-tune genre.”
There was a flipside to ASCAP’s success. By the 1930s, membership had become a practical necessity for anyone hoping to have their music performed publicly and, if performed, to collect a royalty for it. “For publishers and composers,” sociologist John Ryan wrote, “to be outside of ASCAP was to be a nonentity in the music business.” But as a private, unregulated association, ASCAP was able to enforce highly restrictive, and even arbitrary, membership criteria that left entire genres—such as “race,” “hillbilly,” latin, and gospel music—in the wilderness. (“Hot” jazz pioneer Jelly Roll Morton and singing cowboy Gene Autry were two famously egregious victims of these policies.) And with its stranglehold on the mainstream popular music coming out of Broadway and Hollywood, there was little to restrain the pricing of ASCAP licenses. The broadcast industry decided to do something about both problems, forming a competing performing rights society—Broadcast Music, Inc. (BMI)—that would build an alternative repertoire from the large pool of music blackballed by ASCAP. The broadcasters promised that BMI would “give to American music a freedom for creative progress that it has never had before.”
Although BMI’s early catalogue fell short of that promise, it cobbled together a sufficient number of songs by ASCAP-rejected writers and passable swing arrangements of public domain tunes like “Listen to the Mockingbird,” to allow the radio networks to pull off a successful boycott of ASCAP music that lasted most of 1941. “They gave us an awful licking,” Oscar Hammerstein II rued. BMI was firmly established, and in the post-war years BMI’s investment in niche genres began to pay off. “Race” and “hillbilly” music, with the backing of BMI, became the more respectable rhythm & blues and country. When R&B and country combined to give birth to rock n’ roll, BMI was well-positioned to thrive—virtually all the iconic early hits of the rock era came from publishing houses affiliated with BMI, and BMI music came to dominate the radio airwaves.
The worm had truly turned. Accusations of melody murder were again in the air. In the 1950s it was the old ASCAP crowd petitioning Congress to break up BMI, and charging that rock n’ roll—“race music modified to stir the animal instinct in modern teenagers, monotony tinged with hysteria,” their expert witness Vance Packard called it—was the product of a conspiracy among broadcasters to foist upon the American public music they could procure more cheaply than the old standards.
In time the energy behind such futile efforts to put the genie of musical diversity back in the bottle was spent, and the memberships and repertoires of the performing rights societies became virtually indistinguishable reflections of the broad and widening spectrum of popular music. Music performance rights, virtually impossible to monetize at the beginning of the 20th Century, were by the final decades nearly as money-good as Federal Reserve notes. They have been the economic engine sustaining a beleaguered music industry in the digital age and underwriting the ever-wider variety of music competing for bandwidth today.
Until 1982, when changing tastes and demographics forced it to close, Lüchow’s displayed a bronze plaque commemorating the night that Victor Herbert and eight colleagues started American popular music down a new path, although it erroneously dated “Founders Night” to February 1914, when ASCAP’s articles of association were actually adopted. That centenary will undoubtedly be marked next year with much justified pomp and circumstance, but now and every year, at Oktoberfest time, songwriters ought to lift a glass of Würzburger Hofbraü, Luchow’s house brew, in honor of their visionary forebears.