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The labels lie: Victor Herbert's Band never made a Zon-O-Phone record

A group calling itself Victor Herbert's Band was among the most popular artists in the early Zonophone catalog. What buyers of those records did not know — and what most collectors don't realize today — is that neither Victor Herbert nor Victor Herbert's Band had anything to do with them.

From evidence presented later, it appears that the records were actually made by the 22nd Regiment Band of the New York National Guard, and this apparently was where the Victor Herbert claim — tenuous though it was — originated. Herbert had conducted this band during the 1890s, but he left that position in 1898, before Zonophone commenced recording operations. By the time the first "Herbert's Band" Zonophones appeared in 1901, Herbert had gone on to conduct various other groups.

Whatever the actual identity of the band on these records might be, it is not Victor Herbert's Band. That fact became clear in early 1904, when Herbert sought an injunction to stop the Universal Talking Machine Company from using his name on their Zonophone discs. An injunction was granted in the New York Supreme Court, and the case went to trial in federal district court in New York on March 9, 1904 (Victor Herbert v. Universal Talking Machine Company). The verdict was in favor of Herbert, on grounds of unfair competition. Universal Talking Machine — by then a new subsidiary of the Victor Talking Machine Company — withdrew the "Herbert" Zonophone records from sale. Herbert later went on to make many recordings with his own orchestra for Edison and Victor.

The Herbert trial was widely covered in the press. Two reports, from The Music Trade Review, are reproduced below.