Howard B. Rockman - Intellectual Property Law for Engineers, Scientists, and Entrepreneurs

Berliner tried numerous substances, including Plaster of Paris and sealing wax, with unsatisfactory results. It then occurred to him that a new substance on the market called celluloid might provide the answer. Berliner contacted J.W. Hyatt, the inventor of celluloid, and Mr. Hyatt felt certain he could provide exact duplicates of Berliner’s records. However, it soon became clear that the material could not withstand the pressure of repeated playings using big, hard steel needles under the full weight of tone arm and horn. Therefore, Berliner abandoned the celluloid process. If you locate an early celluloid disc today, you probably have a very rare and valuable item in your hands.

Berliner next began contacting manufacturers of hard rubber items. He found that warming the rubber made it possible to stamp copies of a zinc negative.

Berliner began marketing his gramophone in the early 1890s. The first samples of laterally cut disc records were issued in Germany, and not in the United States. In 1887, Berliner had obtained patents in both Germany and England for the gramophone. In 1889, he went to Germany to demonstrate his invention to German scientists. While visiting his native Hanover, he was approached by members of the firm of Kammerer and Reinhardt, a toy manufacturer in the town of Waltershausen, who offered to place small discs and small hand‐turned machines on the toy market, and Berliner agreed. For several years, five inch Berliner Gramophone records were manufactured in Germany‚ and several were exported to England. Some of the first discs were made of celluloid, while the later discs were made in part of rubber. However, this was a very small operation.

Subsequently, Berliner returned to the United States and entered into an agreement with several New York investors, and they formed the American Gramophone Company. The company never got off the ground, and then Berliner organized the United States Gramophone Company in Washington, D.C. He stated that he formed the new company at the same time that he switched from celluloid to rubber discs. A patent application for the hard rubber discs was submitted to the U.S. Patent Office in 1893, and the rubber discs entered the market in 1894, the year following the application for the rubber records patent. Today, many consider that that creation of the United States Gramophone Company in Washington, D.C. in 1894 was the true beginning of the American record industry. Gramophone discs and machines reached rapid popularity. Until 1894, all available records were wax cylinders designed to be played on cylinder machines. These wax cylinders were easily broken and did not last long. Also, they could not be mass produced and could be copied only in limited numbers. Moreover, cylinders employed a vertical or hill and dale cut, and the machines had to have a feed screw attachment to prevent the reproducer stylus from jumping out of the grooves, and the feed screw easily came out of adjustment.

Berliner’s disc record was made of hard rubber that was difficult to break and could be mass produced so that the discs could be widely marketed. His discs had a constant deep groove with sound vibrations on the walls; thus, the stylus could be lodged down into the groove, and the groove itself would pull the stylus with its attached tone arm and horn across the face of the disc. One other advantage was that the discs had a blank center area where the title, performer, and disc number could be etched, or a permanent paper label could be attached. The fact that the gramophone machine could not be used for making home recordings as a cylinder machine could does not seem to have had much effect on Berliner’s invention's popularity with the public.

Soon after the beginning of the United States Gramophone Company, Berliner lost faith in rubber pressings. He then turned to the Duranoid Company, which made shellacked electrical parts. In 1895, Berliner sent Duranoid a nickel‐plated stamper, and the company returned to him a shellac pressing that was in every way superior to the hard rubber pressings. By the middle of 1895, all Berliner discs were being made by Duranoid using the shellac process.

In 1896, Berliner licensed a group of businessmen to market and distribute his products. They formed the Berliner Gramophone Company of Philadelphia and hired Frank Seaman to organize the National Gramophone Company in New York to handle the distribution of the discs and machines. Recordings were made in Washington and Philadelphia and the stampers were made in the Washington laboratory, and pressings were made by Duranoid.

The major problem Berliner faced at this time was with the playback machines. Originally, these were hand turned. Spring motors were attached to some, but the springs were rather weak and required a high degree of power to rotate the gramophone with its heavy tone arm and horn, compared to a cylinder machine and its floating stylus. Berliner then began working with a machine shop owned by Eldridge Johnson in Camden, New Jersey, to manufacture machines with spring motors. Johnson eventually designed a gramophone using a spring driven turntable of his own design. The Johnson machine, while not entirely satisfactory, was the best that could be produced at the time.

On September 29, 1897, a tragedy occurred when the Washington Traction Company, where the laboratory of the Gramophone Company was located, burned to the ground. The Gramophone Company lost at least 100 zinc masters that had not been pressed, as well as all of its equipment. Everything had to be replaced.

During the late 1890s, the market for Berliner's discs began to expand into foreign countries. Berliner had obtained patents in Germany and England, and in the following years, patents were obtained in Italy, France, Belgium, and Austria. In April 1898, he formed the Berliner Gramophone Company of London. Two gentlemen were sent to Germany to form a German branch with the main office in Hanover. Eventually, there were gramophone companies in all the major countries of Europe including Russia. Berliner’s sons, Herbert and Edgar, opened the Berliner Gramophone Company of Montreal, Canada, in 1899. Subsequently, after Berliner lost his fight against illegal competitors, the Berliner name was gradually dropped from each corporation so that, for instance, the London branch became simply the Gramophone Company.

In 1898, the first of illegal recordings generated by the financial success of Berliner’s invention hit the market. Records made by the Standard Talking Machine Company were simply copies of Berliner records, but with the number “1” added to the disc number. This obvious infringement of Berliner’s patents was soon halted. In 1899, a more serious challenge arose when advertisements appeared for the Vitaphone Disc and Machine made by the American Talking Machine under rights from the Graphophone Company. However, the lawyers for the Berliner Gramophone Company pointed out that the graphophone patents covered vertical cuts, while the Vitaphone’s lateral cuts were an infringement of Berliner’s patents. The Vitaphone operation was subsequently shut down, but not until a large number of records were sold.

Finally came the Zonophone made by Universal Talking Machine Company. It was disclosed that Universal’s president was O.D. LaDelow, who was at the same time secretary and general manager of the National Gramophone Company, and that Frank Seaman, president of National, was also an executive of Universal. This was perceived by Berliner as a betrayal of the Gramophone Company’s interests, and the Philadelphia organization refused to send Seaman and LaDelow any more records or machines. Seaman’s lawyer brought suit claiming that by its 1896 contract, the Philadelphia organization was legally obliged to continue to supply National with discs and machines. Despite Seaman’s and LaDelow’s extra‐legal methods, which included issuing original Berliner discs with all identifying information except the title erased and exchanging the Gramophone Company label pasted onto Johnson’s machines for one reading “the Zonophone,” in June 1900 a court miraculously issued an injunction that shut down the Berliner Gramophone Company of Philadelphia and left Emile Berliner with no way to operate his company. Attempts were made by Berliner over several years to overturn the injunction, but without success.