“it has been established as common law and recognized by Burkan helped Herbert and a group of composers and music pubour courts that rules attending property must keep pace with lishers, including Irving Berlin, to form ASCAP with the purpose of its increase and improvements…and copyright law must corre- protecting their intellectual property rights. spondingly extend,” Nathan Burkan, Class of 1900, wrote in his The ASCAP model involved selling licenses to businesses testimony to the US Congress and who wanted to play ASCAP memSenate in 1906. bers’ works, and proceeds were Burkan, representing the distributed to members based on Music Publisher’s Association, the number of compositions they was advocating for increased owned. Though the group reportcopyright protection for intellecedly struggled to sell licenses at tual property owners like authors first, a trip to the nation’s highand musicians. est court eventually ensured His efforts led to the passage its long-term success. of the landmark Copyright Act of A lawsuit filed by Burkan on 1909, making this NYU Law alumbehalf of Herbert against a New nus one of the founding fathers York City restaurant that allowed of IP law. a performance of his song “SweetBurkan was a legendary copyhearts” tested ASCAP’s theory that right attorney with a client roscopyright owners deserved to be ter that reads like a Who’s Who of paid for such public performances show business at the turn of the of their work. last century. His first important The US Supreme Court heard client, the New York Times wrote the case, and the justices, in a 1917 upon his death in 1936, was “light opinion authored by Oliver Wenopera” composer Victor Herbert, dell Holmes, sided with Burkan’s known for 1903’s Babes in Toyland, client. Copyright owners, the among other pieces. Herbert was Herbert v. Shanley opinion said, followed by Charlie Chaplin, Floshould be paid if their music is renz Ziegfeld, and motion picture performed in a commercial place, companies including United Artsuch as a restaurant, even if the ists, Columbia Picture Associamusic is not the sole reason the tion, and Metro-Goldwyn-Mayer. patron is visiting the business and Burkan, the Times obituary there is no charge for admission. said, was “an expert cross-examNathan Burkan escorts his client, Mae West, Burkan continued to represent iner” who “frequently baffled from the Jefferson Market Courthouse in Manhattan the group, and appears in a 1924 witnesses into statements which during the 1930 obscenity trial for her show Pleasure Man. photograph with Herbert, Berlin, upset their case.” John Philip Sousa, and others on a As a celebrity lawyer, Burkan appeared on behalf of Gloria trip to Washington, DC, to promote increased copyright protection. Vanderbilt in the infamous custody battle over her daughter, In New York City, Burkan was at times a divisive political figalso named Gloria. ure. His Times obituary describes him as “a leader” in the TamIn 1930, he successfully defended Mae West, accused of obscen- many Hall political machine, “swaying considerable power behind ity in her show Pleasure Man, referred to as a “gay play” for its inclu- the scenes.” He was instrumental in the building of New York’s sion of cross-dressing men. Burkan knew how to play the press, Triborough Bridge (now known as the Robert F. Kennedy Bridge). and reportedly instructed the colorful West to dress in demure Unlike many of today’s most prominent lawyers, Burkan was black frocks for the trial. Unfortunately, however, after winning not a member of a white shoe firm and never took on any partners. West’s case, Burkan reportedly sued her for failing to pay his fees. He did employ associates, however, at one point occupying Tabloid-worthy stories aside, Burkan is best known for his role an entire floor of the Continental Building at Broadway and in the February 1914 founding of the American Society of Com- 41st Street, the Times said. posers, Authors and Publishers (ASCAP). Burkan’s client, Victor A century after its founding, Burkan and Herbert’s rights Herbert, and other musicians had become increasingly frustrated project is still going strong. ASCAP boasts more than 480,000 that their music was being played in restaurants and dance halls members and distributed to them more than $4.2 billion over throughout the country with no compensation to the artists. the last five years. —E.G.S.
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A Founding Father of IP Law
The annual magazine from NYU School of Law.