Disputed Work

Harry Kennedy

“Cradle’s Empty Baby’s Gone”

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Comment by Katie Leo:


The landmark case of White-Smith Music Publishing Company v. Apollo Company is often cited for its discussion about the copyright status of recorded sound, specifically whether piano rolls constituted protectable copies, and for its influence on the enactment of the 1909 Copyright Act. In his 1908 majority opinion in that case, Justice Day referred to a nineteenth-century lawsuit with similar facts and legal questions raised only a few years after the invention of player piano technology. This earlier suit, Kennedy v. McTammany, involved William Kennedy, known professionally as Harry Kennedy, and his co-plaintiff, the Automatic Music Paper Company, a predecessor to the Aeolian Company that bankrolled the later White-Smith litigation. They sued the self-proclaimed inventor of the player piano, John McTammany, for creating an unauthorized roll of Kennedy’s 1880 sentimental song, “Cradle’s Empty, Baby’s Gone.” Because Kennedy had executed an exclusive license agreement with the Automatic Music Paper Company to copy the song by creating a piano roll of it, the Plaintiffs claimed, McTammany had committed copyright infringement by recording another roll of the same song. Perhaps unsurprisingly, McTammany claimed that a piano roll did not constitute a copy of Kennedy’s copyrighted sheet music because the two music objects—sheet music and piano roll—provided entirely different information. Extant pleadings engage with this discussion in great detail, explaining for the court the meaning of various sheet music symbols as well as the mechanics of early player pianos.


After an unfavorable decision that a piano roll did not constitute a copy and therefore no infringement could have occurred, Kennedy and the Automatic Music Paper Company, which by 1888 had merged with the Mechanical Orguinette Company to become the Aeolian Organ and Music Company, appealed the matter to the Supreme Court. Unlike White-Smith, however, this piano roll copyright matter was denied certiorari in 1892 (145 U.S. 643), rendering the legal status of piano rolls unsettled for over a decade.


The court records, held at the Boston branch of the National Archives and Records Administration, have since been digitized and are available here.



Court Opinion: PDF