Paul Whiteman: Radio Performance Rights Advocate

This guest post is written by Katherine M. Leo, a 2018-2019 Paul Whiteman Collection Fellow. Learn about the Fellowship and find out how to apply here.

We often think of Paul Whiteman (1890-1967) in his public persona as the beloved “King of Jazz.” The Paul Whiteman Collection at Williams College houses nearly 600 linear feet devoted to his musical activities, including several scrapbooks of news clippings, troves of original arrangements, advertising ephemera—from modern posters to wrappers for hot doughnuts stamped with Whiteman’s famous caricature—posed and candid photographs, and even records from his film appearances, notably Thanks a Million (1935) and Rhapsody in Blue (1945).

Yet we might think comparatively less about Whiteman’s role as a charitable celebrity and musical advocate. Although Whiteman’s business and personal records have been inconsistently preserved, the Collection includes a variety of letters and certificates memorializing his efforts to assist local and national organizations, such as the Girl Scouts of America. In addition to copious thank you notes, the news clipping scrapbooks report on Whiteman’s many benefit concerts, including one to aid unemployed musicians during the Great Depression. Whiteman also participated in the American Society of Composers Authors and Performers (ASCAP), the National Association of Broadcasters (NAB), and helped found the National Association of Performing Artists (NAPA), for which Whiteman served on the board of directors alongside Fred Waring (President), George Gershwin, Guy Lombardo, and Ray Noble.

My research on music copyright, with the generous aid of the Paul Whiteman Collection Fellowship, led me to wonder about Whiteman’s role in advocating for the rights of radio and recording artists. The 1909 Copyright Act, in effect for practically the entirety of Whiteman’s career, notably excluded legal provisions for artists whose recordings were played over radio airwaves. But as a January 28, 1936 article in the Philadelphia Record, titled “Harmony (Musical) May Grace Hearing: Radio and Stage Players to Perform Arguments at ‘Piracy’ Quiz,” noted: “the present copyright laws have not been amended since 1909, when the radio and the ‘talkies’ were unknown and when even silent pictures were regarded as a curiosity. The rapid development in mass entertainment made existing copyright laws archaic.” The 1912 Radio Act, which permitted then-Secretary of Commerce Herbert Hoover to ban large radio stations from playing records over radio, had done little to offer additional regulation. For bandleaders that also broadcast live performances, such as Whiteman and others, this situation meant competition against their own records for commercial radio airplay.

In the mid-1930s, Whiteman filed one of a number of lawsuits brought by NAPA members against radio stations, including a suit that involved Fred Waring. But it was a case involving Whiteman and his record label, RCA v. Paul Whiteman, that generated a landmark decision and has been the subject of historical review. The trial court in the Southern District of New York had decided in favor of Whiteman and RCA, granting them an injunction against New York radio station WNEW for playing recordings featuring songs performed by Whiteman’s orchestra without permission, which in turn contributed to RCA seeking to develop a licensing scheme. In a related complaint, however, RCA sued Whiteman over failed attempts to license those recordings, claiming that Whiteman had granted any common law property right in those recordings to the label.

Perhaps the best documents housed in the Whiteman Collection regarding these legal matters are not letters or contracts, some of which are now preserved in case records held at the National Archives and Records Administration in Kansas City, but rather the contemporaneous news coverage and analysis of the case held in scrapbooks. Most newspapers reported the facts of the case and the contours of the decision, associating Whiteman’s participation with the NAPA. Perhaps unsurprisingly, music and broadcast trade publications gave the case more detailed treatment. For example, the August 1, 1939 edition of Broadcasting published a two-page article that even included a reprint of the full district court opinion and an analysis of the issues at stake. Similarly, an article from the August 1939 edition of Metronome, “Warning on Wax!” explained:

[I]t is conceivable that each band leader and each vocalist will receive a sum (probably infinitesimal) for each time a station broadcasts his record if the companies go ahead with their licensing procedure—well fine and dandy for the artist!

BUT, [sic] the companies should be careful not to extract too heavy a toll from the stations. For, no matter what arguments anybody else may put forth, we’ll still remain convinced that if it weren’t for the constant plugging that the smaller stations throughout the land have been giving records, the phonograph industry would never have been able to come back as it has.

Other media outlets reinforced Whiteman’s commitment to the NAPA’s agenda while casting his participation as seemingly reluctant. On December 8, 1938, Variety ran the article, “Whiteman Disinclined But WNEW Action Forced to Trial by RCA Victor,” alleging Whiteman’s reticence to engage in litigation: “Test case which the National Association of Performing Artists brought against WNEW, N.Y. in [sic] behalf of Paul Whiteman was on the verge of blowing up last week when the band leader advised Maurice Speiser, NAPA general counsel, that he wanted nothing further to do with the litigation.” Despite Whiteman’s alleged desire to withdraw, according to the article because he believed that a favorable decision would only apply to the nine records named in the lawsuit and an unfavorable decision could prove costly, RCA pushed the case forward.

In what was a surprising legal reversal by the Second Circuit Court of Appeals in late 1940, noted Judge Learned Hand determined that neither Whiteman nor RCA held a right to license the recordings for broadcast. Because playing a recording over radio was not believed to reproduce the copyrighted work, made tangible at that time only by written sheet music, the court reasoned that no copyright provision could have been violated by airplay. The precedent would last through the remainder of Whiteman’s life.

Scholars have since summarized the case and problematized the racial politics underpinning Whiteman’s claims to recorded songs composed by other, notably non-white, musicians. But how did Whiteman himself make sense of these issues? What were his thoughts on the case, on copyright, and his perceived role in its revision? Although the bandleader’s enormous presence seems to pervade the lawsuit, his voice remains nearly silent outside of extant trial testimony. Whiteman’s careful curation of his professional image may have motivated him to limit public statements or the retention of written correspondence with friends and colleagues. Yet Whiteman’s participation in the NAPA, the lawsuit, and his career more broadly, may still have more to say about his musical-legal advocacy efforts.

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Katherine M. Leo is an Assistant Professor of Music at Millikin University. Holding both a Ph.D. in Musicology and a J.D. from The Ohio State University, her research explores the intersection of American legal and music histories, with specific emphasis on twentieth-century popular musics. Katherine has recently published in Music and Politics and the Journal of Music History Pedagogy.