Hey Mr. DJ, I thought you said we had a deal I thought you said, “You scratch my back and I’ll scratch your record” And I thought you said we had a deal –They Might Be Giants, “Hey Mr. DJ, I Thought You Said We Had a Deal” (ASCAP)
But the truth is that payola isn’t really back–it’s just back in the news. Payola has been a constant and universal part of the economy of popular music for about the last 125 years, and the likelihood that legislators will be able to do anything constructive about it is about as high as the odds of winning the war on drugs. It was old when ragtime was new, and it still will be going strong long after rock ‘n’ roll has died. Generations of reformers have gone up against payola–and those few who have accomplished anything lasting have only succeeded in making things worse.
On the local level, practically anyone involved in mediating between the music industry and the urban public stood to benefit from the largesse of the publishers. Cabaret singers and dance bands were all on the take, naturally. But so was the blind busker whose one talent was winding the crank of a wheezing curbside barrel organ; ditto the guy in charge of stocking the rolls in the coin-operated player pianos in saloons and penny arcades.
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Then as now, the issue of copyright protection was of primary concern. Guarding the intellectual property of Tin Pan Alley was the American Society of Composers, Authors and Publishers (ASCAP), a “performing rights organization” formed in 1914 to extract royalty revenue from ballrooms, dance halls, cabarets, and other businesses making commercial use of music. But when radio was brand-new, it wasn’t immediately clear whether the rules governing intellectual property here on earth applied once said property was beamed into the phantom land of the airwaves. At times, it seemed as if they might not. In a 1924 test case, Remick v. American Auto Accessories, for example, Justice Smith Hickenlooper of the Ohio federal district court–a strict constructionist if ever there was one–ruled that a radio station’s conversion of copyrighted music into inaudible and invisible radio waves and the subsequent reconstitution of those waves back into sound within the walls of private homes “across thousands of miles of space” in no way accorded with the definition of “public performance” as imagined by Congress. Hickenlooper was overturned on appeal, but the issues at stake in Remick were still being batted back and forth in federal courts well into the next decade.
HIS MANAGER: Fine! I can get Scratchi Records to put it out on a special release for $1,000.
MAGNATE: Make it $150; we gotta make this one knock ’em cold. Don’t spare no expense, that’s the way to sell a million copies.
