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