The recent revival of Pal Joey in Philadelphia reminds us of one of the strangest episodes in the history of popular music in America. Strange, and fascinating. I'm speaking of the early-1940s dispute between broadcasters and the music establishment -- specifically, the American Society of Composers, Authors and Publishers.

These combatants didn't care one way or the other about Pal Joey. But the show suffered because it was in the wrong place at the wrong time. Almost all of America's familiar music was banned from radio starting January 1, 1941, one week after that show opened. Broadcasters didn't want to pay the fees that ASCAP imposed, so they created their own company, Broadcast Music Inc., to publish and license new music -- and then they stopped playing all ASCAP music.

Pal Joey would have run longer as the public got to know its songs. But the ban silenced what was the most pop-oriented score of any Rodgers show. In an era when jitterbugging was the rage, Rodgers wrote a half dozen swing numbers, such as "Plant You Now, Dig You Later." In addition, "I Could Write a Book" and "Bewitched, Bothered and Bewildered" were perfect for the pop charts. They became popular a decade later, after the ban ended and long after the show closed.

The problem was that Pal Joey opened Christmas night, 1940, and six days later, all of its music was banned from the airwaves as broadcasters boycotted all music written by established composers in the 20th century. Silenced at the stroke of midnight December 31 were the instrumental and vocal works of Irving Berlin, George Gershwin, Jerome Kern, Aaron Copland, Richard Rodgers and many more. While the war clouds gathered far across the sea, Americans were forbidden to hear "God Bless America" on radio.

Irving Berlin, composer of that anthem, announced that he would personally perform in movie theaters around the country to plug the sheet music and phonograph records of his catalog of banned hits. (He didn't follow-through on this idea, unfortunately.) Bandleader Russ Morgan sent a telegram to President Roosevelt asking that money budgeted for the Works Progress Administration be paid to ASCAP to keep America's familiar songs on the air. Roosevelt ignored him.

All radio programs in those days started with identifiable musical intros. Starting January 1, 1941, broadcasts had to change those signature songs. For instance, Jack Benny had to stop playing "Love in Bloom" and George Burns and Gracie Allen had to drop their "Love Nest" which was written by one of ASCAP's founders, George M. Cohan. Every radio program had to hire composers to write new theme songs which would be licensed by BMI. Paul Whiteman, for example, paid a freelance arranger named Jack Wagner to compose a substitute for Gershwin's "Rhapsody in Blue." Somehow, the replacement never gained the stature of the original.

Lou Silvers was the regular arranger and conductor for the Lux Radio Theater, and he composed additional music for it each week. He, like the entire musical establishment, was an ASCAP member. During the ban he had to hire a BMI writer and pay him out of his own pocket to hand in music that was largely Silvers' work. It makes one think of the Woody Allen movie, "The Front," about the dissembling that took place involving blacklisted writers during the McCarthy era.

To replace ASCAP material, radio stations started playing very old songs with no copyrights, like Stephen Foster's "I Dream of Jeanie With the Light Brown Hair;" and foreign songs -- like "The Breeze and I," "Perfidia" and "Frenesi" ("It was fiesta down in Mexico.") Then they added new songs by unfamiliar writers who never qualified for ASCAP membership. Two examples of that were "There I Go" and "I Hear a Rhapsody."

To prepare the country for an ASCAP-less era, BMI promoted "There I Go" early, and it was announced as number one on "Your Hit Parade" in late December, despite the fact that it wasn't the leader in either sheet music or record sales. Many Americans didn't know the song, yet they were told it was number one, which made some question the authenticity of "Your Hit Parade"'s survey. On the first week after the ban began, six of the top ten songs were sudden, brand new "hits," whereas normally only one or two new songs join the list in any given week. Among the good ASCAP songs that were prematurely killed off: "Blueberry Hill," "A Nightingale Sang in Berkeley Square," "Only Forever" and "The Last Time I Saw Paris."
Taking their place were BMI creations like "The Hut Sut Song" and "Daddy (I want a diamond ring)."

The writers of the new BMI songs can be described in one of two ways, depending on whose side you support. If you sympathize with BMI, they are neglected artists who had been denied access by the entrenched insiders of ASCAP. If you support ASCAP, the new writers are scabs who stole income from America's proven creative artists.
In later years, BMI developed into a healthy force in the music industry. But at the beginning it was considered, at best, an upstart with no credentials; at worst, a bunch of thieves stealing from America's beloved songwriters.

At radio stations, librarians put scotch tape across the grooves of ASCAP discs to let their deejays know these were not to be played. (Sometimes there was a BMI or public domain song on the flip, so the tape just covered the ASCAP side of the record.) Some stations used nail files to permanently ruin ASCAP records. Clearly, emotions were running strong.

The nation's dance bands commissioned new novelty songs from BMI writers for their radio appearances, and some of them were pretty awful, like "Hep-Tee Hootie, the Juke Box Jive," while Glenn Miller had to stop playing his self-composed theme song, "Moonlight Serenade," because he was an ASCAP member. He hired a BMI writer to provide a new melody which he called "Slumber Song." Miller played it at the start and end of every broadcast for a year.

Pretty soon, dance bands and pop singers stopped performing ASCAP material in live appearances as well as on their radio broadcasts. At dances and in concert, they wanted to perform their new recordings, and they only recorded BMI songs. Although no one officially censored what musicians recorded, why would anyone record music that couldn't be played on the air?

One consequence of the ban was a surge in the popularity of Latin American music, because foreign songs were not ASCAP. Bands began to play songs that came from south of the border, untainted by the ASCAP label, like the previously-mentioned "Perfidia" and "Frenesi." Jimmy Dorsey's band recorded "Maria Elena," "Green Eyes" and "Yours." A Latin singer changed his name to Andy Russell and achieved stardom singing "Amor" and "Besame Mucho." Gradually, anglo people began to learn the language from listening to these songs. Enrollment actually increased in high school Spanish courses.

Another result was a spate of hillbilly, or country-and-western, hits, because their authors were not ASCAP. Roy Acuff, Eddy Arnold and Hank Snow started to hear their songs being played on mainstream stations, and "You Are My Sunshine" became one of the most-sung songs of the year. Bing Crosby recorded it, which led an ASCAP supporter to say that Crosby should have shown more loyalty to the songwriters who gave him the material that made him famous. That raises a question of how far loyalty should go. If people like Crosby refused to sing BMI songs, they'd have had to give up their radio careers.

The concept that writers "gave" their songs to Crosby may seem odd, but that's the way things work. When a singer wants to sing a song he doesn't need to pay anything. The writers and their publishers hope, of course, that the performer will make the song a hit, and income will come from sheet music and record sales, plus the licensing fees that ASCAP (and now BMI) collects from theaters, clubs and radio (and TV) stations.

Dead European composers were not protected by copyright, so BMI arrangers adapted the classics. The opening theme of Tchaikovsky's "Piano Concerto No. 1" became a huge hit, "Tonight We Love." His "Romeo and Juliet Fantasy" became "Our Love," and his Fifth Symphony became "Moon Love."
Newcomers Robert Henning and Heinz Provost affiliated themselves with BMI, then published a song called "Intermezzo" that lifted its theme from Wagner's "Tristan Und Isolde" and sold half a million copies of sheet music.

There was one fluky oddity. Rodgers & Hart wrote their first show, Garrick Gaities, before they joined ASCAP, and then their first publisher sold its catalog to BMI, so the songs from that 1925 show were allowed to be played.

Musicologist Sigmund Spaeth wrote that "America's popular music sank to its lowest ebb" that year. He complained that "the air was filled with completely commonplace material."
But that's one man's reaction, and I enjoy many of the BMI songs. One significant ASCAP tune came out when the ban was ended near the end of 1941. It was the ballad "You and I" by Meredith Willson, who played in the New York Philharmonic under Toscanini, then won acclaim as an orchestral conductor. He went on, of course, to write The Music Man in 1957, then The Unsinkable Molly Brown.

Examining the prelude to this conflict, ASCAP was founded in 1914 by a group of songwriters led by Victor Herbert. They were upset that people performed music in public, for profit, and did not compensate the authors. The new society undertook the task of enforcing the copyright law that was passed in 1897, stating that anyone performing music for profit has to get the consent of the copyright owners on whatever terms might be mutually agreed. A copyright owner may choose to give away his property, but he also has a right to ask for as much of a fee as the traffic will bear. Theoretically, a venue such as a radio station needed to negotiate and obtain written permission for every single song.

Instead of having bargaining sessions over every performance, ASCAP allowed theaters, night clubs and radio stations to acquire blanket licenses for an annual fee. For a theater, it was only ten cents per seat per year for unlimited use. For radio stations it was 5% of the station's annual advertising income. The income to ASCAP then was divided among the writers and publishers according to the volume and popularity of their output. Stations had to keep printed logs to show what was being performed, and ASCAP hired checkers to listen to the radio and verify the accuracy of the logs. BMI also hired spies to check up on what was being played.

The theater and night club communities agreed to pay what ASCAP asked. Radio stations agreed for about a decade, but in 1940 they rebelled and established BMI to publish and administer a new body of music that would compete with ASCAP's material. The struggle between broadcasters and the society heated up when ASCAP asked for higher fees for its songs because the economy was emerging from the Great Depression.

The BMI folks seemed to be as interested in compromise as George Bush is with Saddam Hussein. People had Hitler and the war in Europe on their minds in 1940 and didn't pay attention to this music battle until, suddenly, their favorite songs couldn't be heard anymore. When ASCAP's license contract ran out on December 31, only 200 small stations paid to continue to use its catalog, and the ASCAP repertoire was blacked out on thousands of stations and on all the networks. People who never knew that the group existed now talked about "as-cap" in their daily conversations.

The dispute dragged on until just before the end of 1941 when the US government mediated a settlement which allowed broadcasters to use ASCAP music for 2.5 percent of each station's annual advertising income -- about one half of what had originally been the rate and only one third of what ASCAP had been asking.

BMI claims that it opened the door to new sounds that had been ignored, like country music and rhythm & blues, which developed into rock & roll. BMI also supported new theater-writers with stipends of approximately $50 a week, and this was a significant factor for many fledgling writers. BMI's official history says that it was formed "to open the door to performing rights representation for songwriters and composers and to provide the business and broadcast communities with a music catalog of unique and lasting value."

Sixty years later, most Broadway tunesmiths are still represented by ASCAP, but there are some exceptions -- John Kander, Fred Ebb, Jerry Bock, Sheldon Harnick, Alan Menken and Maury Yeston. The reasons are varied why these men are BMI. Kander and Ebb joined BMI because of the weekly stipend which they offered. "That's important when you're poor," says Kander. Harnick, on the other hand, was ASCAP until he wrote a show with BMI-member Bock in 1957. "I joined ASCAP because that's where most other Broadway writers were," reports Harnick, "but then I learned that ASCAP would not compensate me for any work I did in collaboration with a BMI artist."

Harnick wrote a letter to the president of ASCAP asking if anything could be done about this injustice. "I never got a letter back from the president. Someone in the ASCAP office responded by sending me a xerox of their by-laws. It was so cold, so curt, so un-caring. So I quit ASCAP and switched to BMI." A current ASCAP staffer is still upset that his office lost out on Fiddler On the Roof.

Interestingly, Harnick later wrote with Richard Rodgers for Rex in 1976. According to the ASCAP by-laws, the agency should have refused to pay Rodgers for his work because he was collaborating with a man, Harnick, who now was BMI. But Dick Rodgers had so much clout that ASCAP changed its rules.


Key Subjects: 
ASCAP; Pal Joey, BMI, Richard Rodgers, Irving Berlin, Your Hit Parade, Meredith Willson
Steve Cohen
Writer Bio: 
Steve Cohen has written numerous pieces for This Month ON STAGE magazine and
December 2002
How the ASCAP vs. BMI War Changed an Industry