Rosen on the Origins of the Right of Public Performance for Musical Compositions

Zvi S. Rosen has posted an article, The Twilight of the Opera Pirates: A Prehistory of the Right of Public Performance for Musical Compositions, forthcoming in the Cardozo Arts & Entertainment Law Journal. An earlier version of this article was awarded first prize in the Marcus B. Finnegan Competition for best paper in intellectual property law at the George Washington University, where the author received an LLM. Mr. Rosen lists no affiliation on his SSRN page, but his article indicates that he is currently a judicial law clerk. To access his SSRN e-mail, click here. Here's the abstract:

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America's first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance became more and more obvious as a result of litigation, especially that surrounding the Gilbert and Sullivan operetta The Mikado. In the mid-1890s the right was once again proposed in an omnibus revision that died in committee, the Treloar Copyright Bill. Simultaneously though, this right went through Congress and was passed as part of an amendatory act which also increased penalties for all unlawful public performances (including drama). This article traces the history of these acts and the litigation in the later nineteenth century, telling a story that has heretofore not been told – the prehistory of the right of public of public performance for musical compositions.