#432 1914 · American Society of Composers, Authors and Publishers (Victor Herbert) · Music / intellectual property licensing
Composers couldn't police every restaurant playing their songs, so they sold one license covering all of them at once
the problem
No composer could individually monitor or collect royalties from every venue playing their music
background
By the early 1900s, sheet music sales were how composers made most of their money, protected by copyright law, but a growing wave of restaurants, hotels and nightclubs had started hiring bands and pianists to play copyrighted songs for paying customers without paying the composers anything beyond whatever sheet music the venue's own musicians had originally bought. The Copyright Act of 1909 technically gave songwriters the right to be paid for public performances of their work, but the law gave them no practical way to actually collect it.
A single composer had no realistic way to monitor even a fraction of the venues playing his songs on any given night, let alone negotiate and collect a fee from each one — and even if he could identify every violation, suing venue by venue for small amounts of money made no economic sense. Composer Victor Herbert, dining with Giacomo Puccini in New York in early 1914, was needled by Puccini over the fact that European composers were paid for exactly this kind of performance, while Herbert, hearing his own composition played by the restaurant's band that same evening, was not.
what everyone would do
Each composer could individually track down every restaurant, hotel and theater playing their music and negotiate a fee directly, or simply accept that public performances of their songs generated no income beyond the original sheet music sale — the only two options actually available to any single songwriter working alone.
what they saw
No individual composer could ever justify the cost of monitoring thousands of venues for a single song's use, and no venue wanted the burden of separately negotiating with hundreds of songwriters just to have background music. But if every composer's songs were pooled into one catalog and any venue could license the whole thing for one fee, the enforcement problem stopped being "track down every use of my one song" and became "one organization licenses one catalog to everyone" — a completely different, solvable problem built from the same individually unsolvable pieces.
the move
Herbert assembled a group of the era's leading composers, publishers and lyricists — including John Philip Sousa — and on February 13, 1914 they founded the American Society of Composers, Authors and Publishers, pooling their catalogs into one collection any venue could license as a whole for a single annual fee rather than negotiating with each songwriter individually. ASCAP issued its first blanket license to a Broadway restaurant that same year for $180, followed within months by dozens more hotels and restaurants across New York City.
why it works
Bundling every member's compositions into a single blanket license eliminated the transaction cost that had made individual enforcement impossible on both sides — a venue paid one predictable fee instead of negotiating dozens of separate deals, and a composer got paid without personally monitoring a single performance. The 1917 Supreme Court ruling in Herbert v. Shanley's, holding that music played to entertain paying customers counted as a for-profit performance even without a direct admission charge for the music itself, closed the remaining loophole venues had been using to argue they owed nothing, giving the blanket license real legal teeth.
the payoff
When venues refused to pay, ASCAP sued, and the fight reached the Supreme Court in 1917's Herbert v. Shanley Co., where Justice Oliver Wendell Holmes ruled that music played to entertain paying customers counted as a for-profit performance requiring a license, regardless of whether the venue charged separately for the music itself. The ruling gave ASCAP's blanket license real legal force, and the model — pool the catalog, license it as one — became the standard mechanism for performance-rights collection industry-wide.
where it breaks
It only works if the pooled catalog is large enough that a venue actually needs most of it — a collecting society covering a handful of songwriters gives a venue every reason to simply avoid playing their music rather than pay for a license, while a comprehensive catalog makes avoidance impractical. And it depends on courts treating incidental, non-ticketed music as a genuine commercial performance; without that legal backing, a venue could argue it owed nothing for background music it never sold tickets to hear.
what came after
ASCAP's blanket license remains the core mechanism through which composers and publishers are paid for public performance of their music today, copied by rival performance-rights organizations like BMI and SESAC and extended from restaurants and radio to streaming platforms; the underlying structure — pooling many rightsholders' individually unenforceable claims into one collectively licensable catalog — has since been adopted well beyond music wherever a right is too fragmented for any single owner to enforce alone.
references
- [1]ASCAP Forms to Protect Writers and Publishers of MusicEBSCO Research Starters, 2022ebsco.com
- [2]ASCAP and the Birth of Performance Rights OrganizationsUniversity of Oregon (Pay for Play open textbook), 2022opentext.uoregon.edu