The Gospel of Performing Rights: Nathan Burkan and Ascap
The articles of association that Nathan Burkan drafted for the American Society of Composers, Authors, and Publishers (Ascap) stated objectives that were mostly high-minded and beneficent: “to promote reforms in the law respecting literary property,” “to promote and foster by all lawful means the interest of composers, authors and publishers of musical works,” “to promote friendly intercourse and united action among composers, authors, publishers and producers.” Barely noticeable amid these soaring generalities was its true raison d’être: “to grant licenses and collect royalties for the public representation of the works of its members . . . and to allot and distribute such royalties.”
The articles addressed in painstaking detail matters of internal governance and the methodology for allocating royalties to members. These provisions would be of mostly academic interest during the seven years that would elapse before Ascap had any net income to distribute. The articles said little about the much more pressing problem of collecting royalties from music users, leaving Burkan and George Maxwell to write on a blank slate. They were acutely aware that Ascap was challenging a stubborn status quo, and they were anxious to avoid repeating the public relations missteps that had dogged Sacem’s New York branch.
Their public statements were measured and reassuring. “The society has not been formed to make a fight upon anyone or to stir up any trouble,” Maxwell told the press. Ascap would not be shaking down artists for per-piece fees after they publicly announced their concert programs; Maxwell made it clear that “we shall not burden the musician.” Fees would only be sought from the owners of performance venues, and only for use of the entire repertoire on a blanket monthly or yearly basis. By gentlemen’s agreement, vaudeville—in recognition of its long-standing symbiotic relationship with the music business—would be left undisturbed. The initial licensing effort would be directed toward the restaurant and hotel cabaret operators who were relative newcomers to show business.
Most important, Maxwell and Burkan envisioned that music fees would be nominal relative to a licensee’s other costs of doing business, a nuisance too small to fight over, in exchange for which it would receive the right to use any composition in the Ascap repertoire as often as it wished. “Anyone,” Burkan naively predicted, “would pay a small fee for this permission.” Ascap would make up for the low price in volume. The real money, Burkan figured, would come not from a few hundred big-city hotels and restaurants to be licensed in the first wave, but from the more than ten thousand motion picture exhibitors already operating throughout the country, with many more certain to follow. The first motion picture palaces employing full orchestras were just then opening, but not even the humblest second-floor nickelodeon would think of showing a “silent” movie without musical accompaniment, even if just an amateur pounding away on an upright piano. With motion picture houses as a revenue base, Burkan expected that Ascap’s annual income would very quickly reach into the millions.
Ascap’s first officers and directors were elected and the articles of association were approved in a plenary session at the Hotel Claridge in New York on February 13, 1914. “A feature of the meeting at which the organization was perfected was the mingling together on equal terms of the composer of the latest ragtime hit and the composer of the successful opera for mutual protection,” read one contemporary account. “It is safe to say that no gathering of composers and publishers was ever held before that was so thoroughly representative of every department and class in the industry.” Nathan Burkan, probably the only man in the United States who could have orchestrated such an assembly, was elected general counsel, a position that he or one of his protégés held continuously for the next sixty years.
In 1925, by which time Ascap was successful enough to be the target of a federal antitrust investigation (for the first but not last time), the FBI agent leading the probe reported to his superiors: “It would seem to be true that Mr. Burkan was actuated to a very large extent by a natural sympathy for authors and composers of musical compositions, men and women who for the most part had very little of this world’s goods and who individually had no means of enforcing the rights and privileges conferred upon them under the copyright laws of the United States.” Raymond Hubbell, who sat on Ascap’s board of directors through 1937, writes that Burkan “never received or wanted the fees he was entitled to for his years of service.”
Burkan could not, in February 1914, have had any more than the faintest foreboding of the years of struggle that lay ahead.