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Way Download Upon The Swapping River
By Danny McBride - 09/10/2003 - 11:07 AM EDT

When Stephen Foster wrote Swanee River and all those other classics almost 150 years ago, there were no MP3 clips, no CDs, no radio, no nothin’!! Songs were disseminated in any number of other ways, however. Minstrel Shows sang them, most famously the Christy Minstrels- -no, not the New Christy Minstrels- -that was in the 1960s, but their namesake from the 1840s & ’50s. Sheet music was sold, sometimes transcribed by people who just happened to hear the songs, and who made money off of the sheet music sales even though they had nothing to do with the creation of the music and never paid the writer. Sometimes songs were just sung with a banjo or guitar around a campfire, or in the family parlor around the piano, and no one really new who the songwriter was- -or cared.

Mr Foster, you may recall, died in 1864, practically penniless. He had 38 cents in his pocket at the time of his death. His family got next to nothing and was barely able even to pay his final hospital and burial bills. Yet we still sing his songs today. Oh! Susanna is just as popular as it ever was, even though Massa’s In De Cold Cold Ground, and other songs, may not be as well remembered today. Foster's only real income was the royalty he earned on sheet music sales. Altogether he made $15,091.08 in royalties during his 37 years and almost nothing in performing rights (yearly average was $1,371 for his 11 most productive years). His widow, Jane, and his daughter, Marion, equally later earned $4,199 in royalties, so that the total known royalties on his songs amounted to $19,290. Today it would be worth millions. (Source: Center For American Music, 2003.)

While still an amateur songwriter, Foster realized that the minstrel show was the key to securing an audience for his songs. At first, he circulated manuscript copies among various minstrel troupes. (Yes, he could read and write music.) After Oh! Susanna became a national hit following its performance by the Christy Minstrels in 1848, the song was widely pirated by more than two dozen music publishing firms, who earned tens of thousands of dollars from sheet music sales. But Foster received a mere $100 from a single firm in Cincinnati. In that regard, Oh! Susanna was a financial failure for Foster, but he learned two valuable lessons: one, his potential to earn significant sums from songwriting and, two, the need to protect his artistic property. During 1848 and 1849, eight more of his minstrel songs were published, including Uncle Ned and Nelly Was a Lady. Determined to make a full-time career of songwriting, Foster left his day gig as a bookkeeper in Cincinnati, and returned to his hometown of Pittsburgh in late 1849 or early 1850. On December 3, 1849, he signed a contract with the New York music publisher, Firth, Pond, & Co., thus officially beginning his professional career.

Myth romantically portrays Stephen Foster as such a pure artist that he had no business sense and squandered all his wealth. In fact he kept his own account books, documenting down to the penny how much his publishers paid him for each song, and he calculated his probable future earnings on each piece. His contracts were written out in his own hand. They are the earliest ones we know of between American music publishers and individual songwriters.

So how did it happen that he only made twenty-grand in his whole life when he should have made way more? Music pirates- -similar to what we have today.

Foster was a pioneer. There was no music business as we know it. Sound recording was not invented until 13 years after his death and radio was not invented until 66 years later. No system of publishers and agents vying to sell new songs existed. No “performing rights” fees were collected from restaurant singers or minstrels or theater musicians or concert recitalists. There was no way of earning money except through a 5-to-10 percent royalty on sheet music sales of his own editions by his original publisher, or through the outright purchase of a song by a publisher. Foster had no way of knowing whether or not he was being paid for all the copies his publisher sold. There were no attorneys specializing in authors' rights. Copyright law protected far less than it does today. Foster earned nothing for other arrangers’ settings of his songs, broadside printings of his lyrics, or for other publishers’ editions of his music. In today’s music industry he would be worth millions of dollars a year. On January 13, 1864, he died at age 37 with 38 cents in his pocket. His brother Henry described the accident in the New York theater-district hotel that led to his death. He was confined to bed for days by a persistent fever. Foster tried to call a chambermaid, but collapsed, falling against the washbasin next to his bed and shattering it, which gouged his head. It took three hours to get him to the hospital, and in that era before transfusions and antibiotics, he succumbed after three days.

Within twenty years of Foster’s death, the concept which he had a large part in creating, that of writing songs for publishers for money, developed into what came to be called Tin Pan Alley, named for a street in New York City (West 28th Street between Broadway and Sixth Avenue where all the music publishers had their offices.) By 1890, sheet music sales of popular songs was a thriving multi-million dollar business.

In 1877, Thomas Edison had invented the phonograph, which used a wax cylinder to record sounds. It wasn’t until twenty years later, in 1897, that Emile Berliner’s invention, the gramophone, with its flat discs just like the ones we call “vinyl” today, took over. By 1908, records- -78 rpm records- -and the gramophone were the public’s preferred playback device.

By 1920, radio took over from vaudeville as the primary source for people to hear new music, and to buy either the record or the sheet music. This lasted about thirty years until television took over the media lead from radio, and rock and roll took over the musical lead from the Tin Pan Alley-style popular song. Also in the late 40s--early 50s, two new competing disc formats were introduced- -45 rpms and 33 ⅓ rpms (revolutions per minute)- -usually just called 45s- -with the big hole in the middle from RCA Victor, and 33⅓s from Columbia, the original long-paying album (so-called because 78s, which contained usually only one song per side, sometimes came packaged like a photo album, with five or six discs making up the dozen or so songs contained in an “album”.

By the 1960s, everything was in stereo, and by the 1970s, other devices such as cassette tapes and eight-tracks were introduced as playback devices equally popular with the vinyl discs. In the 1980s, the Compact Disc was introduced, and it is still the dominant format for music playback. But in the 1990s, a new device, the personal computer, changed all the playback rules again.

It should be noted that in addition to all these playback device changes, copyright law established internationally by the Berne Convention of 1886 and amended from time to time ever since, most notably in 1909, 1911, 1956 and 1988, protects the works of authors, composers and publishers. This includes copyrights in addition to music, such as in art, literature and other intellectual properties. Ninety-six nations currently are signatories.

In 1914, the performing rights society ASCAP (American Society of Composers, Authors and Publishers) was founded by Irving Berlin, Victor Herbert and John Phillip Sousa, among others, in order to facilitate the collection of royalties, mostly from sheet music in those days, but later encompassing recordings and performances of all types. BMI, SOCAN, SEASAC, PRS and others followed. These organizations enable songwriters and music publishers to get paid for their creativity.

It has taken one hundred years, give or take, for songwriters to achieve the protection and benefits of property owners similar to landowners, or any other real property owners. And all of this could evaporate in the click of a mouse.

Soon the modern songwriter, after about one hundred years of being able to make a living as a songwriter, may be about to go the way of the horse and buggy. And it isn’t because of Minstrel Shows or sheet music dealers who simply transcribe and print songs they’ve heard. Nope. But it is similar. It’s because computer owners feel the world is free, especially the world of intellectual property, and that if it’s out there, it’s there to share. Would these same people walk into Borders and walk out with a CD without paying? Probably not. Or if they did, they’d know they were stealing. But online? Hey! It’s supposed to be free, isn’t it?

The RIAA (Recording Industry Association of America, a trade group of music companies) is suing file sharers and those who download music without paying. Lawsuits have been filed against 261 individuals who don’t know the meaning of the word stealing. Tabloid newspapers are pleading the case of innocence by 12-year-olds and other young people who would most likely not shoplift a stick of gum, but the fact is that stealing is stealing, whether it’s online or in a store. I’m sorry these kids don’t know any better. Maybe soon they, and the parents who allow this, will.

As a songwriter who needs that royalty check to survive, all I can say is “Aaah”.


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