White-Smith Music case: A terrible 1908 Supreme Court decision on player pianos.

Love Cover Songs? Thank This Terrible Supreme Court Decision About Player Pianos.

Love Cover Songs? Thank This Terrible Supreme Court Decision About Player Pianos.

The making of America.
May 12 2014 10:00 AM

Scales of Justice

How a terrible Supreme Court decision about player pianos made the cover song what it is today.

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Anticipating that Congress would overturn White-Smith Publishing, Aeolian swiftly bought up song rights from musicians and publishing companies so it could copy them onto player piano rolls. Aeolian’s weaker competitors complained to Congress about this attempt to corner the music market.

An automatic piano roll, Vienna.
An automatic piano roll, Vienna.

Courtesy of Jorge Royan/Creative Commons

So to keep the Aeolian Co. from having a monopoly on the then-crucial player piano roll market, Congress allowed anyone to make a mechanical reproduction of someone else’s song. And that doesn’t just mean that Aeolian’s competitors could make their own piano rolls of popular tunes. Congress’s compulsory licensing scheme legalized the cover song—anyone can make their own recording of someone else’s song, just so long as a recording of that song has previously been released, and the cover artist pays the required fee. (In practice, most cover artists pay privately negotiated rates that are even lower than the fee set by Congress). And the freedom to cover others’ songs gave birth to a vibrant culture of continuous musical revival, remaking and reinterpretation, all of which allows good songs to become great and, sometimes, we must admit, classics to be butchered.

It’s all in the eye (or ear) of the beholder. But the important point is that because of Aeolian’s dominance of a now-defunct technology, we have a musical culture in America in which musicians are free to tweak songs they like—and they do so with great enthusiasm. Bob Dylan wrote “All Along the Watchtower”; Jimi Hendrix turned it into something quite different and, arguably, made a great song even greater. Another 1960s classic, Van Morrison’s “Gloria,” has been covered by performers including Jimi Hendrix, the Doors, David Bowie, Tom Petty, Bruce Springsteen, Rickie Lee Jones, AC/DC, and (in perhaps the song’s most memorable and inventive reinterpretation) Patti Smith. “Gloria” is an enduring song in part because so many legendary musicians have tweaked it. Cat Power, John Lennon, Willie Nelson, Paul Anka, and many other famous artists have issued albums of nothing but cover songs. All this legal copying has made our musical culture immeasurably richer.


Has the freedom to copy others’ songs, in exchange for a very low fee that the original songwriter has no power to override, suppressed the incentive to write new songs? There’s no evidence of that. Indeed, the opposite is true. Every day we see a continual outpouring of new songs. And many of the copied songs—the covers—are themselves incredibly creative. Think about jazz greats like Charlie Parker and John Coltrane. On one level, they are copying—Coltrane’s version of the Rodgers and Hammerstein standard “My Favorite Things” relies on that song’s famous melody. But if Coltrane starts there, it’s certainly not where he ends up. By the song’s end, more than 13 minutes later, Coltrane has altered the original melody and taken it in a much darker, more contemplative direction. At some point in the song, Coltrane crosses the uncertain border that separates copyists from creators.

This kind of creative copying—what we will call “tweaking”—is not just a musical thing. It is present in all inventive fields. Perhaps the most important point about tweaking is this: Tweaking does not appear to lead to fewer original creations. If anything, it may often encourage them. Many of the most significant and enduring innovations rest on tweaking. As Malcolm Gladwell has argued, the late Steve Jobs of Apple—an icon of our innovation economy if there ever was one, and the man behind the iPhone and iPad—“was repeatedly referred to as a large-scale visionary and inventor.” But in fact, “he was much more a tweaker.”

Jobs, Gladwell goes on to argue, was “the greatest tweaker of his generation.” Even the iPad, Jobs’ last great success, was a tweak of an idea out of Microsoft. And Gladwell rightly points out that the significance of tweaking to technological innovation is by no means a new thing: Economists debating the origins of the industrial revolution have claimed that the key reason Britain, and not France or Germany, was the first home of the industrial age was tweaking. As Gladwell describes their argument, Britain was not necessarily the home of path-breaking pioneers who created the foundational building blocks of the Industrial Revolution. Rather:

Britain dominated the industrial revolution because it had a far larger population of skilled engineers and artisans than its competitors: resourceful and creative men who took the signature inventions of the industrial age and tweaked them—refined and perfected them, and made them work.

In creating the cover song, the Congress of a century ago had no idea it would let loose one of the great innovative forces in music. It was just trying to repair a blunder by the Supreme Court and ensure that the giant Aeolian Co. didn’t swallow the entire player piano market. Today, the player piano market is minuscule, and Aeolian has been dead for almost three decades. But the lesson of Aeolian lives on. Copying and creativity are not opposites—they are often complements. Since there is nothing new under the sun, every creator relies, sometimes to a large degree, on what came before.

This should be obvious, but too often it isn’t. Copying is viewed as a terrible thing, a crime and a killer of creativity. To be sure, copying can have bad effects. But as the Aeolian story shows, it can also be the key to new forms of creativity we never could have imagined.

Chris Sprigman is a professor at the NYU School of Law. Kal Raustiala is a professor at UCLA School of Law. They are the authors of The Knockoff Economy.