_The inventor._--Being an inventor, and _Arguments before the Committee on Patents of the House of Representatives, conjointly with the Senate Committee on Patents, on H.R. 19853, to amend and consolidate the acts respecting copyright June 6, 7, 8, and 9, 1906.

inventions being on automatic musical instruments and devices for

making the controllers (which patents largely outnumber any

contributed by any other individual to this art), I am well fitted

to state the part these devices have taken in the advancement of

music. Automatic musical instruments date back six decades or

over. The barrel organ, with its cylinder and pins, was used to

accompany divine worship in English churches before pianos adorned

the homes of the congregation, and they have been constantly

manufactured up to the present time, and are known now as

orchestrions. Twenty-three years ago, at the inventions exhibition

held in London, England, automatic reed organs (æolians) were

exhibited by the Mechanical Organette Company, of New York, and,

mechanically, I had charge of the instruments on exhibition. There

were also exhibited piano players of French and German manufacture

and the Miranda pianista, an English pneumatic player. Both

æolians and piano players have constantly been manufactured up to

the present time, inventive genius constantly laboring for

perfection in operation, ease of operation, and reduction of cost

to place them in reach of the masses. It is a fact beyond dispute

that barrel organs are as old as or older than pianos or reed

organs.

I have labored twenty-three years in this industry and contributed

between thirty and forty patents to the automatic-instrument

industry, and have invented and patented machines that would

record on controllers for automatic musical instruments the

conceptions of pianists and authors, when played on an instrument

by them, and I have yet to acquire a competency for my labors. The

inventor's labors are always discounted by the following

conditions:

First. Capital and machinery to market and manufacture the

invention.

Second. State of the prior art as brought out in the Patent Office

search.

Third. The liability of infringement and the slow and tedious and

expensive process of stopping it, taking testimony from Maine to

California, etc. I have a case of flagrant infringement which was

prosecuted four years ago and has not yet been adjudged by the

circuit court--as is usual in such cases, temporary injunction

being denied, which the composer or author could and does readily

obtain.

_The composer._--The composer or author of musical compositions

rarely, if ever, follows composing or copyrighting alone as the

means of making a livelihood. In all my experience I can not

recall a single instance where this has been the case. With

practically no exceptions, the composers of musical compositions

are engaged in various other walks of life, and this line of work

is more or less incidental to the occupations they follow. As an

illustration I will name a few of them: Band masters, professional

pianists, organists, choir leaders, teachers of music, piano

salesmen, music salesmen, and many other callings. The amount of

time or application spent in framing musical compositions is

oftentimes but a few hours and in the majority of cases in

otherwise idle hours. For instance, the testimony of George

Schleiffarth, given under oath, which appears later in this brief.

He states: "I have composed 1,500 pieces in thirty-seven years and

have netted only $5,000 for these thirty-odd years." This is an

average earning of $3.33 for each piece he copyrighted, or a

yearly income during these thirty-seven years of $135 per year

from his copyrights. It is patent to anyone that he did not

procure his livelihood by this means. This is not an exceptional

case, but rather a fair average of them.

I do not believe a single case can be produced where a musical

composer has earned a livelihood by his compositions alone. This

is a very different case with the author of a book with whom the

composer shares like privileges under the copyright act. In the

majority of cases the author follows writing as his only means of

livelihood. This class of work occupies a great deal of time,

expense, travel, and study of the subjects forming the foundation

of his work. The composers rarely treat their compositions as a

serious business proposition, but rather as a side issue of net

gain on what they realize from them. The publishers of the country

are banded and organized together for mutual protection and

enrichment to profit by this condition at the expense of the

composer, the policy to fight royalties in favor of outright

purchases for nominal amounts being general.

_The manufacturer of automatic musical instruments and their

controllers._--The equitable interest of the automatic instrument

manufacturer consists really of two classes, namely, their rights

as legitimate manufacturers to a self-made industry; and the part

they have taken in the musical education of mankind, and the right

they have to continue uninterrupted in an industry and art in

which they have been so potent a factor, without molestation.

First. All manufacturers of automatic musical instruments or their

controllers have vast interests involved. Capital and time have

been heavily spent in creating an honest, legitimate and, beyond

question, legal business. They have acquired patent rights, built

at large expense special machinery to make a more perfect and less

costly product. In short, have exercised and exhibited the same

ambition and enterprise that is put into any business where price

and merit is the determining factor of success.

Second. The manufacturer of self-playing instruments has done much

to extend and create cultivated musical taste in the community.

This has at no time been at the expense of the composer, but, to

the contrary, has increased not only the sale of sheet music but

has not diminished the study of music, as the following witnesses

testified under oath in the recent copyright case: White Smith

Music Publishing Company _v._ Apollo Company, which testimony was

never rebutted or disputed as to fact.

Mr. George Schleiffarth, witness called on behalf of defendant,

being duly sworn, testified as follows:

"I have been writing music for thirty-seven years. I have written

about fifteen hundred copyrighted compositions, several comic

operas, and innumerable musical sketches of all sorts. I have also

published some music personally and have now compositions with

nearly all the leading publishers in the United States. My

best-known compositions are 'Doris,' 'Ambolena Snow,' 'Douglas

Club Two-step,' 'Who Will Buy My Roses Red?' and the comic opera

'Rosita,' which has been playing for about twelve years, * * * and

as the composer is anxious to be known, I have often asked my

publishers to allow the reproduction of my compositions on

graphophones and self-playing devices.

"Q. 5. Is it your actual observation that the demand for the sheet

music is created and stimulated so that the sale thereof is

increased by having the musical compositions played by the piano

players and other self-playing instruments, and that the cutting

of the perforated rolls for a given musical composition and the

selling of such rolls with and for the piano players does increase

the demand for the sheet music?--A. As I am not in the sheet

business on such a scale that I could judge to what extent it has

increased, I still claim, from knowing the amount of music sold in

the United States to-day, especially in the popular composition

line, it is stimulated by all self-playing devices. For example, I

would sit at a piano player and play a catchy melody; six or eight

people standing around me will immediately ask--or some of them

will--'What is this tune you are playing?' and I know from

personal knowledge that many copies, especially of my own

compositions, which are cut for self-players, have been bought in

sheet-music form on account of my playing them on the machine.

"Redirect:

"Q. 22. I inferred from your statements in that regard that you

received usually what you regard as very small compensation or

price for a great many of your compositions thus sold. Will you

give some instances of this sort, illustrating the disparity

between the price you received and the popularity, in sales, of

the pieces respectively?--A. My first great success, 'Careless

Elegance," which I published on royalty twenty-eight years ago,

and which is still selling to-day, netted me $11. My great song,

'Who Will Buy My Roses Red?' which sold 100,000 copies, netted me

$83. My great composition, 'The World's Exposition March,' $5.

'The Cadet Two-step' (50,000 copies sold), $4. And so I may go on

ad infinitum. Out of 1,500 compositions I have probably earned

$5,000."

"PETER C. LUTKIN, witness called on behalf of the defendant, being

duly sworn, testified as follows:

"Q. 4. Have you in mind the rate of growth in respect to pupils in

attendance in the school of music for which you are dean, for five

or six years back; and if so, will you kindly give us the facts in

general?--A. I have the statistics for the past five years. The

attendance in the school of music for the year 1898-99 was 248;

for the next year, 297; the next, 348; for the next, 366; for the

present year, 460. The figures for the present year are an

underestimate rather than an overestimate, as the year is not yet

closed; actual number is 453 to date, but will probably run to

475.

"No cross examination."

"JULIUS W. PETERS, a witness called on behalf of the defendant

company, being sworn, deposes and testifies as follows:

"Direct examination by Mr. BURTON:

"Q. 1. Please state your name, age, residence, and occupation.--A.

Julius W. Peters; age, 45; residence, 4465 Oakenwald avenue,

Chicago, Ill.; bookkeeper for Chicago Musical College.

"Q. 2. In your capacity of such bookkeeper, have you been

intrusted with the keeping of the attendance of that

institution?--A. I have.

"Q. 3. Will you please state what those records show as to the

rate of growth of the attendance of pupils at that institution

during recent years, giving, if you can do so, the rate from year

to year, down to the current year?--A. I have taken this report

from the year 1896-97, and our years run from September to

September, The increase from 1896-97 to 1897-98 over the preceding

year was 9.6 per cent, in the following year 10 per cent, in the

next year 10 per cent, in the next 23-3/4 per cent, and in the

next year 12.9 per cent.

"Q. 4. Can you give, from the indications so far in this year, the

approximate rate of increase?--A. I should say it would be at

least as much as last year, which was approximately 13 per cent.

"Q. 5. What is the total increase in attendance from the first

year of which you have stated the figures, to the present

time?--A. 75.3 per cent; that is, up to September, 1902.

"No cross-examination."

"Mr. WILLIAM MCKINLEY, a witness called on behalf of defendant,

being duly sworn, deposes and testifies as follows:

"Direct examination by Mr. BURTON:

"Q. 1. Please state your name, age, residence, and occupation.--A.

William McKinley; 41; 3306 Indiana avenue, Chicago, Ill.; music

publisher.

"Q. 6. During the period, say, for the past three years, during

which the manufacture and sale of these automatic players has been

most rapidly increasing, what has been the fact with regard to the

sales of sheet music, as to growth or diminution?--A. My business

has greatly increased.

"Q. 7. If you have made any examination with regard to the

compositions which have been cut in perforated rolls and used in

automatic players by the different companies making such players,

as to the sales which have been made of these pieces in

sheet-music form during the period, say of the last three or four

years, or since the time when they were cut in perforated rolls,

will you state how the sales of such pieces have run? Have they

increased or decreased during those years?--A. My business has

very greatly increased in certain pieces that I know are issued in

the form of a perforated roll.

"Q. 8. Have you in mind--if so, you may state as near as you

recall--the rate of increase of any number of those which you have

looked up and remember, giving their titles, if you recall them;

and, if not, in general?--A. The sales of some of the pieces have

doubled within the last two years--double what they were for the

four years previous. I have traced up about 20 pieces of that sort

to get these figures from which I stated the comparison above. I

know when I desire to get new music for my family I call on the

operator or performer of some of the stores that handle the music

rolls. They often give me a list of the pieces. I usually purchase

that. I have a list in my pocket of perhaps at least 20 pieces

that I have been recommended to purchase. They have been

recommended to me by one of the young men who has charge of that

department--music rolls--in one of the stores; pieces I had never

heard before.

"Q. 9. I understand you mean by your last statement that the

pieces that you are recommended to purchase are so recommended by

persons who have opportunity to hear them played by means of the

perforated rolls?--A. Yes, sir.

"No cross-examination."

"WALTER LUTZ, witness, called on behalf of defendant, being duly

sworn, deposes and testifies as follows:

"Direct examination by Mr. BURTON:

"Q. 1. Please state your name, age, residence, and occupation.--A.

Walter Lutz; 29 years; 902 North Halstead street, Chicago, Ill.;

salesman with H. B. McCoy in the music business, Chicago.

"Q. 2. How long have you been employed as music salesman?--A.

Sixteen years.

"Q. 3. From your experience as a salesman of sheet music, have you

had any opportunity or occasion to judge what effect, if any, the

introduction and increasing use of the piano players and other

automatic instruments of this class has upon the demand for and

sale of the sheet music of the same compositions?--A. Yes; I have

had people come in the store and ask for music which they had

heard from the various players.

"No cross-examination."

I wish to call the committee's attention to the fact that the

above testimony was taken to prove the opinions expressed by two

witnesses for the plaintiffs were in error when they stated as

their opinion that the mechanical player was detrimental to the

sale of sheet music. Note the lawyers for the White Smith Music

Publishing Company did not dispute the facts by not

cross-examining these witnesses. The plaintiff is a big music

publishing house and influential members of the Music Publishers'

Association, with all the evidence and aid their association could

lend, could not and did not attack these undisputable facts. It is

a coincident worthy of your close attention that W. M. Bacon, a

partner in the plaintiff's firm in this case and also of the

leader of the prosecuting forces and signally failed to prove that

this industry did other than to improve the sale of music, now

comes to your committee with a copyright measure framed by his

associate on the copyright committee of his association.

Mr. G. W. Furniss, who is chairman, presented it and had it

drafted in at the first conference, at which they both were

present, and they were at every other conference to guard their

conspiracy; conspiracy I say, because Mr. Bacon's firm has a

contract (and his lawyers had to so stipulate), identical to the

contract filed with your committee, between a publisher and the

Æolian Company. Read the contract; they have conspired against the

composer and against the public for an undue personal gain,

grafted what they wanted in their copyright measure, and now come

to you gentlemen with it under the guise that the composer is

being robbed of his dues by automatic devices. I submit it is a

prima facie case of the principals to this contract not only

planning to sweat the composer, but to hold up the public. It is a

conspiracy in which the copyright office has aided them, possibly

innocently, and they have asked your assistance, the public funds

paying the expenses, the same public they want to get under their

grasp. I can prove every word of this at any time. Is it not time

Uncle Sam should arouse?

_The public._--The public side of this question is an important

one. They have purchased in good faith instruments and

self-playing devices and invested their money on the reasonable

assurance of being able to continue undisturbed in these rights,

and, by their patronage, have helped develop one of the foremost

industries of this country and must be permitted to continue to

buy controllers from the different manufacturers of their

instruments. The public's spending power in this industry, being

the foundation of this great and prosperous industry and the

foundation on which compensation is now sought by copyright

legislation for the composer, it is obvious that it must not be

impaired at this late date by any measure calculated to give

either the composer or his publishers legislation that will place

either of them in a position to dominate this extensive industry

and interests, and the public.

PERTINENT POINTS OF FACT.

This bill, H.R. 19853, as presented, is an iniquitous measure,

framed not by the "poor composer" nor by the public interested,

but by banded, bonded interests, which have conspired together for

special privileges and greed and have had the audacity to submit

it to Congress for its seal of approval. There is no secret now

about this. The Librarian's records show, as also his admissions,

that the interests I have enumerated in this brief were never

notified of intended proceedings and never invited, although these

uninvited interests are the very ones bartered in in the bill. The

conferees at the conference consisted of the Book Publishers'

Association, the Music Publishers' Association, etc. The two

mentioned could hardly represent the authors and composers. Have

they any credentials to this effect? The facts are, they represent

copyrights they own and for which they seek further favorable

concessions, out of which the exploited beneficiaries, the

composers, would get nothing.

It had been maintained that mechanical players tend to discourage

learning and reduce the sale of copyright music, but all the

evidence taken on this subject proves the contrary is the case,

and it was never questioned, even by counsel representing the

publishers, who now seek special privileges. The publishers can

not prove that they have paid an average of 1 per cent on

have earned an average of 1 per cent on their copyrights, in an

industrial field of their own, yet they ask legislation giving

them a dominating interest in an industry that other brains and

money have created. Any amendment to this measure placing all

interests on an equitable footing will be fought by its advocates,

showing their corrupt intentions. This industry has been hampered

for past years by threats of the mentioned combinations, and

Congress in any new bill should clearly define whether this

mechanical matter is or is not included in the amendment. To end

this matter once and for all, I am in favor of giving the

composers (not the proprietor or owner of a copyright) the

specific right to copyright his composition as applied to

mechanical reproductions, and to collect reasonable royalties from

manufacturers who may wish to use it, leaving it to a court of

equity to determine what a reasonable equity would be, if such a

measure is considered advisable. I should urge that, as this

provision will apply solely to mechanical reproductions and

receive its benefits therefrom, the term of this copyright should,

in all equity, take the life of a patent with which it associates.

The following parallel ethical equities with the case of the

composer might well be considered by the committee:

The architect, the man of brains, who conceives a wonderful

conception of a piece of architecture or arrangement of a

building, how can he prevent anyone else from duplicating this

result or building it, which is the creation of his conception and

work? A man discovers a treatment for some disease; others use it

and apply it. A surgeon discovers a new form of operation; the

others use it. A business man, by dint of his brain, figures out a

great system for running his business, which makes it immensely

profitable; his fellow-beings adopt it and don't pay him a cent.

There are hundreds of parallel cases. Gentlemen, if it had not

been for this gigantic conspiracy you would not have heard of the

composer's woes.

This amendment has been fathered throughout by publishers,

associations, and rings. They have exploited the composers'

interests when they do not represent them, but, instead, their own

selfish interests, which have been safeguarded in advance by

contract.

Any legislation in favor of the oppressed composer should be so

worded and framed as to not place him any further under the power

of these combinations.

I shall be pleased, at any time, to prove to your honorable

committee any statements made in this brief.

F. W. HEDGELAND,

_Representing Inventors, Manufacturers, Composers, and the Public,

1535 West Monroe street, Chicago, Ill._

STATEMENT OF CHARLES S. BURTON, ESQ., OF CHICAGO, ILL.

The CHAIRMAN. Whom do you represent?

Mr. BURTON. I speak for the manufacturers of the perforated rolls and

automatic instruments.

The CHAIRMAN. How much time do you wish?

Mr. BURTON. I do not know how much time the committee has at its

disposal nor what has transpired. It may appear that some of the

points on which I wish to speak have already been handled, and if I am

informed of that as I touch them I will not take up further time with

them. As I say, I speak for the manufacturers of perforated rolls and

automatic instruments.

The CHAIRMAN. We have had several speakers on that subject.

Mr. BURTON. I understand that some points have been presented.

The CHAIRMAN. Perhaps it would answer your purpose to be permitted to

see what they have said and supply in writing any additions you may

desire to make.

Mr. BURTON. I should be very glad to do so. I have been obliged to

come here on the shortest possible notice. I left my desk with my mail

half opened and jumped for a train upon a telegraphic request to be

here, and have only had that much time to determine just the form in

which I would like to present what I have to say. But I could give you

in ten minutes, probably, the results which, it seems to me, the bill

should accomplish, and if I touch on points that have already been

discussed it will not be necessary to speak further on them.

The CHAIRMAN. You may have ten minutes.

Mr. BURTON. But I would like to take advantage of the permission to

file a full brief, giving my suggestions in detail as to the changes

which, it seems to me, ought to be made in the bill.

Mr. CHANEY. Of course we want that, Mr. Burton. We think that will be

more valuable to the committee than a speech.

Mr. BURTON. That is what I wanted to present, and if I had had time I

should have been glad to have brought it in that form here.

I want to say first that it seems to me that while the bill follows

the previous statutes in general in respect to copyrights, in the

point I am going to speak of it ought to be amended. The practice in

respect of patents is that the inventor shall verify his inventorship;

he shall make oath that he believes himself to be the inventor, and

any rights that pass to an assignee of the inventor must pass by an

instrument which can be placed of record, signed by the inventor. But

on the contrary, in the case of copyrights, in order to obtain a

and make the claim as proprietor. He does not even have to verify

that; and thereupon this bill expressly provides that he has a prima

facie title to the copyright thus obtained.

It seems to me that that opens the door, as it always has--there is

nothing new in this bill in that respect--to a large amount of fraud

upon the author or whoever is the one in whom the right originates. I

think, therefore, that when the bill is made up it should require the

author to verify his authorship. The bill should provide that the

application for registration should be accompanied by an affidavit of

authorship, and if application is made on behalf of an assignee as

proprietor there should be an instrument conveying the right from the

person who originates it, namely, the author, accompanying the

petition. It seems to me that no hardship can arise from requiring

this of an author and the assignee of an author, as it is required of

an inventor and the assignee of an inventor.

The bill provides that there shall be a very careful prima facie case

made by affidavit as to the printing and preparation of the mechanical

material for publication in order to come within the statute. All that

must be verified, but the fundamental authorship requisite goes upon a

mere assertion, without even the verification of an oath of the party

claiming. A change should be made in that respect.

Then, furthermore, with regard to the right respecting perforated

rolls, in respect of which I am speaking particularly, I think the

right should be entirely distinct and separate from the fundamental

used; that the right to the perforated roll or whatever other form of

mechanical reproduction is claimed should be based upon the filing of

a copy of that perforated roll; that the filing of the copy of the

original work should carry the copyright in the common sense of the

word, but if the author desires to claim copyright in a perforated

roll on his work, for that purpose, if you please to put it so, he

should take it for that purpose, and make his claim of copyright upon

that roll. If he wishes it in any other form of reproduction, such as

the disk of the talking machine, he should file that; and I think that

right should be entirely separate from the right which might pass by

an assignment of the copyright. The publisher who may acquire the

conveyance (although the same person might acquire both) acquire the

right to control the perforated roll or the phonograph record or the

talking-machine disk; they should be entirely separate.

The bill does provide that these shall be regarded as separate

estates; but in view of the decisions in which a similar phrase is

used, it is clear to me that that means that when the copyright has

been obtained by the one proceeding provided for here, all these

elements of it are separate estates which might be passed by separate

assignments, but they would all be contained in the one copyright. I

think that is wrong. I think that the right for the perforated roll

should be acquired by filing a copy of that roll, in order that the

public may know just exactly what is claimed, and whether it is

claimed or not, and whether it is to be utilized.

Furthermore, I think that is a right that is naturally distinct from

the other. It is a right that goes into manufacture instead of into

publication. It is not to be done by the same people, naturally. The

manufacturer, having a factory, makes the perforated roll. The

publisher makes the books in an entirely different way. The two things

are like different lines of trade. They are not naturally blended,

either in use or sale. And therefore the composer or author, whichever

it be, a work of words or of music, should be entitled to handle it

entirely himself, apart from any right that he may have passed to the

publisher by the transfer of his copyright.

I think I overheard as I came in a remark indicating that the next

point I desire to press has already been suggested. In section 3 of

the bill as I read it, as it stands now, there is a provision which

would make it possible (and the committee will interrupt me if it has

already been discussed, for in that event I should not wish to spend

any time upon it) for the owners of copyrights of existing music to

simply refile that music for copyright under this statute, and publish

it with the mark that is required by this bill, and thereupon all that

was contained in the previous copyright that is contained in that

refiled and recopyrighted matter would come under this act, with all

the privileges that this act gives over former copyright acts.

For example, this very matter of the right to mechanically reproduce

would attach to a piece of music which had been previously copyrighted

and of which a copy is now filed under this statute, and all the

privileges of the bill except the longer term would attach to old

copyrighted music which is simply refiled. So it would be possible to

make the provisions of this act retroactive, so that the publishers,

upon taking this proceeding, for 50 cents, with all their copyrighted

music, would immediately cause the loss of the millions of dollars

that have been invested in those rolls.

Mr. CURRIER. That has been discussed by several gentlemen, and

objection taken to it--the same objection you are discussing now.

Mr. BURTON. Very well; I will not talk of that.

Mr. CHANEY. His point is that he would let the copyright go to each

one of these interests, as I understand it.

Mr. CURRIER. That is on another point, however. He is speaking about

section 3 now, in reference to subsisting copyrights.

Mr. BURTON. In section 3 there is a provision which ought to be

changed to prevent the subsisting copyright from carrying over these

provisions into the new----

Mr. CURRIER. That has been discussed by several gentlemen.

Mr. BURTON. Then if you are not going to make it retroactive--I judge

the committee is clear upon that point--so as to bring under a

rolls, the question next should be, Should it be possible for the

composer, by copyrighting now his perforated roll or taking any steps

under this statute, to have the right from this time on to control the

cutting of music which has heretofore been cut?

That strikes one at once with a little semblance of justice; but the

injustice of that proposition consists in this: That for every piece

of music which has been cut by a manufacturer, that has been lawfully

cut under the present decisions, where he has a perfect right to do

it, he has been obliged to expend from $10 to $25. He has that much

investment lying under this music that is out in the market. Now, if

it is not reasonable that all this outstanding music, lawfully made

and lawfully sold, should become outlawed by a new act, is it

reasonable that all this provision for making that investment, which

amounts to millions of dollars, in the preparation for cutting this

music, should become outlawed immediately, so that no more

compensation can come to this manufacturer who has this $25 or this

$10 invested in each piece, and say to him: "You can not use that

music; you can not cut any more of that music?" Is it reasonable that

that investment should be killed--that that investment, lawfully made,

in a lawful product, should become immediately unlawful and waste

paper?

Mr. WEBB. What section has that effect?

Mr. BURTON. I do not say the bill would certainly have that effect. It

is entirely uncertain, but it seems to me the bill would have the

effect, as I read it, of permitting the composer to claim the rights

except as to outstanding music--that is, the right from this time on

to cut it. The bill should be clear. I have had only a very short time

to examine it, and a provision may possibly lurk somewhere under which

the continued production of perforated rolls now being produced would

be permitted, but I think not. I think it is possible, or might be

held possible, under the bill for the composer to claim the rights

from this time on to cut the music.

Mr. CURRIER. Oh, very clearly so; he can sell that right.

Mr. BURTON. If that is the case, it seems to me unjust.

Mr. CAMPBELL. Where the copyright has run out?

Mr. CURRIER. No; for copyrights taken out after the passage of this

bill.

Mr. BURTON. I am talking about the music that is now on the market,

not the rolls, but the means of cutting them--whether the composer

can, under this bill, acquire the right to stop the cutting from now

on of that music.

Mr. CURRIER. I do not think you need to take any time with that

proposition.

Mr. BURTON. If that is clear, I will pass it. It seems to me the bill

gives it; but if you make it entirely clear that it does not----

Mr. CURRIER. It is not the purpose of the committee, I judge, to allow

that. Your time has expired.

Mr. BURTON. Then I will ask leave to file a complete brief suggesting

changes.

Mr. CURRIER. And I might say to you what has been said to others

here--that neither the Senate nor the House committee will take any

action on this bill at this session. It will go over until next

winter, and at any time before action is taken you can file any

further brief or any further suggestions with the committee.

Mr. BURTON. I thank the committee on behalf of the interests I

represent.

_To the Senate and House Committees on Patents_:

Pursuant to the permission granted me at the conclusion of the few

minutes' oral hearing with which I was favored before the joint

meeting of your committees, I beg to submit herewith a brief and

suggestions with respect to the amendments to Senate bill 6330 and

House bill 19853, deemed proper and necessary in order to make the

act contained in said bills properly protective of the rights and

conservative of the interests arising out of and connected with the

industries of automatic musical instruments and controlling

devices--perforated rolls, talking-machine disks, and phonograph

cylinders--for the same.

All of which is respectfully submitted.

The following facts should be taken into consideration in making

any amendment to the copyright law affecting automatic reproducing

devices as well as perforated rolls for reproducing music,

talking-machine disks, and phonograph cylinders for their

respective purposes.

1. To the modern arts relating to automatic music-playing devices

and automatic means for reproducing sound, such as talking machines

and graphophones, authors and music composers have contributed not

a single iota.

These arts have been the result of the combined efforts of

thousands of scientific, industrious, and artistic inventors. These

inventors and the manufacturers cooperating with them by their

capital and business skill and enterprise have created these entire

arts and to them is due the entire benefit which the public has

derived and is deriving from these arts.

2. Musical composers and song writers, notwithstanding their entire

lack of participation in the creation and development of these

arts, have derived already and are still deriving large pecuniary

benefit from them.

This is most clearly provable in respect to musical compositions.

For any musical composition which has been largely reproduced by

automatic players employing perforated roll controllers a largely

increased demand immediately arises. The sale of the ordinary staff

notation of any such composition experiences a notable stimulus

immediately upon the production and sale of the perforated rolls

for producing the composition automatically upon musical

instruments.

This fact is conclusively established by the record in the suit

of Apollo _v._ White-Smith Music Publishing Company, lately

determined in the United States circuit court of appeals in the

eastern division of the southern district of New York. We are

filing herewith a copy of the printed record of the defendant in

that suit, having marked the pages[1] containing the testimony

upon this point, and also a copy of the brief on behalf of the

defendant citing[2] the facts as established by the record upon

both sides to the effect that in the face of the testimony by

wholesale and retail dealers in sheet music, that the sale of

perforated rolls for such music largely and promptly increased

the demand for the sheet music, there was offered not one word

of testimony to the contrary, although in the control of the

complainants and available as witnesses in their behalf--practically

as cocomplainants or cobeneficiaries with them in the suit--were

included nearly all the large publishers of and dealers in sheet

music, whose records of sales would have established the facts one

way or the other overwhelmingly, so that the absence of testimony

from these sources must be taken as an admission of the fact as

testified to by the few publishers who were accessible to the

defendants.

[1] Schleiffarth, pp. 48-51; McKinley, pp. 97-100; Lutz, pp.

100-101; Jansen, pp. 131-133.

[2] Pp. 29-34.

We assert, and challenge contradiction, that the experience and

observation of the music trade during the past ten years, during

which this art has grown from infancy to its present proportions,

establishes the proposition, viz, that the sale of perforated rolls

and other means for automatically reproducing musical compositions

to the ear tends largely to increase the demand for the ordinary

staff notation or other published form of the particular

compositions which are thus reproduced.

3. The making of a perforated roll or equivalent device or

appliance for reproducing to the ear a musical composition is not a

mere mechanical process nor one involving mere mechanical skill. It

is, on the contrary, an artistic process requiring musical taste

and ability and affording opportunity for the exercise of the very

highest musical taste and ability, conjoined with the most exact

and delicate understanding of the mechanical principles and

features of the mechanism with which the controller device--perforated

roll or the like--is designed to cooperate for reproducing the

music to the ear. The art of the "arranger," as he is termed, of a

perforated roll brings into exercise an artistic sense and skill

of as high a rank as that of the musical composer and requires, in

addition thereto, an ability to understand accurately and minutely

the intricate mechanism to which the device produced must

correspond and with which it must cooperate.

In the case of the talking-machine disk and phonograph cylinder,

the contribution of the singer and player is even more obvious, as

the essential and controlling element in the value of the devices

which result and which are the distinct product of the art of the

singer and player is a thing apart from the art of the composer.

The producer of a perforated roll or of a talking machine disk or

phonograph cylinder, therefore, is as much entitled to be

considered an "author" in virtue of the production of such roll,

disk, or cylinder, entirely apart from and subsequent to the

composition of the music as is the painter by virtue of his

sensitive appreciation of beauties of form and color in nature and

his skill in reproducing them upon the canvas. The landscape

painter does not create the nature scene, but he is not the less

an artist because he depicts it only, instead of creating it from

his imagination. Nor is he less entitled to a copyright upon his

painting, because it is a more or less perfect reproduction to the

eye of that which existed for the eye before he reproduced it,

than if he had evolved the scene from his imagination and then

depicted it to the eye by the same skill.

The photographer who merely posed his subject is entitled to a

shape the form, nor arrange the hair, nor devise the costume. He

merely posed them all, and chose the position with respect to

light and shadow, and adjusted the contrivances for affecting

both. This was his art, and the photograph is the result; and it

is his photograph for purposes of copyright.

The "arranger" of the perforated roll is an artist of as high

merit as the photographer, and in some respects of as high merit

as the landscape painter.

If there is to be secured or conferred upon anyone an exclusive

right to the perforated roll, or to the talking-machine disk, or

to the phonograph cylinder, for producing to the ear a particular

composition, that right, in virtue of authorship, belongs to the

arranger of the perforated roll and to the singer or player who

produces the talking-machine disk or the phonograph cylinder.

That copyright may reasonably be granted to the producers of these

devices for the devices themselves seems too obvious for argument,

and that it should not be in the power of any composer whose

composition is published and on the market to discriminate between

different arrangers of perforated rolls or different singers or

players, in respect to the right of making such records,

respectively, and of selling or renting the same, seems also

obvious justice.

It would be no injustice, in view of the observed facts above

stated--that the composer derives benefit only and never injury

from the sale of these automatic devices--that he should have no

rights in respect to them, except to be credited with the

compositions by having them marked with the title which he has

given them for market and with his name as composer. But in view

of the possibility that there may be reciprocal advantage--that

the name and repute of the music and of its author may contribute

to the sale of the reproducing devices--a royalty for the use of

the title and name may reasonably be allowed to the composer.

But the composer should not be recognized as having any right

entitling him to prohibit anyone who desires to do so from making

such automatic reproducing devices by employing either the art of

the arranger of the perforated roll, or the voice of the singer,

or the skill of the player on musical instruments.

And the royalty should be uniform for all makers of each sort of

device; that is, all makers of perforated rolls for a given

composition should pay the same royalty to the composer for the

use of his name and the title of his music, and all makers of

vocalizing disks or cylinders should likewise pay the same royalty

for a given composition.

This right to royalty should be allowed, not in virtue of any

domination or supposed domination of the original copyright over

the act of reproduction, but solely in virtue of the natural right

of the composer to have his name and the title which he has given

to his music associated therewith, howsoever it is produced, and

of the fact that presumably a commercial value attaches to such

name and title, which will benefit the seller of the automatic

reproducing device.

This right of royalty should therefore not run to the proprietor

of the original copyright as such, but to the composer as such. If

the composer has sold his copyright the purchaser should not, by

virtue of that purchase, acquire any interest in the royalty of

the composer for the use of his name and the title of his music.

Of course the composer could sell this royalty right, and if he

chose to sell it with the copyright and to the same person he

could do so, but it should not pass without express mention. It

should not pass as incident or appertaining to the copyright.

Such a provision would be precisely like the provision in the

present statute with respect to translations. In the statute it is

now provided, not that the copyright includes the right of

translation, but that the author whose work has been copyrighted

has the exclusive right of translation. He may sell his copyright,

but such sale does not divest him of the monopoly of the

translation nor vest such monopoly of translation in the assignee

of his copyright.

NOTE.--This point is somewhat fully developed in brief of the

defendants in White-Smith Music Publishing Company _v._ Apollo,

copy of which brief is herewith furnished. (See p. 46 to 50,

inclusive.) The position above stated and presented in brief, as

above noted, was not controverted and was apparently fully

conceded as a legal proposition, by counsel for the complainants

in that suit. The ultimate propositions supported by the above

contention in that suit were contested upon other grounds. Copy of

complainants' brief upon this point will be furnished the

committee later, with citation to the particular paragraphs

sustaining the above statement.

Outside of and as an exception to the general class of musical

compositions to which the foregoing considerations are pertinent,

there is a class more closely related to automatic reproducing

devices and in respect to which the composer has a more vital

interest, viz:

Musical compositions not reproducible to the ear by a single human

performer upon any instrument, but which can be produced by means

of perforated rolls on an automatic instrument.

The staff notations of such compositions have practically no

market value, except in case they are arranged in the forms of

orchestral scores, so as to be produced by a plurality of

instruments simultaneously played by different performers. The

number of copies of such orchestral scores which will be required

is necessarily very limited, and the sale of such staff notations

offers a very limited field from which the composer may derive a

just compensation for his work. The only source of revenue to the

composer of such works is in the sale of the only means of playing

these, viz, the perforated rolls.

It may be deemed proper and it will not be denied that it would be

just that a composer of a musical composition of this class who

causes it to be embodied in the form of perforated roll, and who

can derive a revenue from it practically only in this form, should

be considered in the light of both composer and arranger, and as

entitled to obtain original and independent copyright of the

perforated roll, so as to control the composition absolutely in

this form.

It is believed that it will not be difficult to frame a provision

of the statute to do justice to this class of composition, and

which shall not trench upon the natural equity of the perforated

roll arranger for other musical compositions, or upon the natural

right of the public to derive the use of the automatic reproducing

devices upon ordinary musical compositions, without requiring the

consent of or paying tribute to the composer.

_4. As to duration of copyright._--The bill before your committees

proposes a remarkable extension of the period of copyright beyond

anything heretofore granted. This is believed to be contrary to

sound public policy and of doubtful constitutionality.

The Constitution expressly limits the power of Congress in respect

to their copyright protection to granting such protection "for

limited periods." The term "limited" can have only a relative

meaning, and the obvious meaning is limited with respect to or in

comparison with the period during which the public will have

desire or use for the copyrighted work. It is contemplated,

evidently, that in compensation for the protection which the

statute gives the composer for a limited period the public shall

derive the unqualified use and benefit of the work for a remaining

period. If there is no remaining period, the consideration for the

protection has failed.

It needs no statistics to establish to the common knowledge of the

committee that not one book in ten thousand has any commercial

value fifty years after its publication. It will probably be safer

to say that not one published work in a hundred thousand has any

life after fifty years. If, therefore, the author is given the

monopoly for fifty years, the public has nothing left to

compensate it for that monopoly and protection.

Not one work in a million endures so as to have any value after

one hundred years.

But the bill proposes, as to the great bulk of copyrightable

matter, that the period of copyright shall be substantially one

hundred years--fifty years after the death of the author.

It is respectfully submitted that this transcends the intention of

the constitutional limitation, and that the public would, by such

an enactment, be deprived of substantially all the compensation

which the Constitution intended should be reserved to it in return

for the copyright protection granted the author.

Whether the constitutional limitation should or should not be so

strictly applied, it seems beyond doubt that sound public policy

forbids thus bartering away all the public benefit arising from

the free right of publication after the expiration of copyright.

There is a second objection to the particular form in which the

bill gives this extended copyright term. There does not appear to

be any logical relation between the copyright protection and the

duration of the life of the author. The privilege or protection

granted is in no respect personal, except as to the revenue which

may be derived.

There does not appear any reason why the work of a mature writer

of 60, presumably capable of giving to the public compositions of

peculiar value, especially if they relate to scientific or

philosophical subjects, should receive less protection from his

productions would obtain the protection of a presumably long life

before him (during which he would often regret his immature

publication).

Furthermore, the particular form or provision of the bill with

respect to joint authors (line 24, p. 14; line 26, p. 15), when

corrected to cure the obvious error in the phraseology and express

the doubtless intended meaning, opens the way most obviously for

practical fraud upon the public. An aged author, by associating

with himself in a nominal yet unimpeachably colorable way a

youthful assistant, and obtaining copyright in their names as

joint authors, will secure protection for his work concurrent with

the life of the junior and fifty years thereafter, instead of

concurrently with his own nearly ended life and subsequent fifty

years.

It is obvious that joint authorship will become exceedingly

popular if this paragraph of the bill is retained; and by the

expedient of triple or quadruple authorship the chances of a long

period will be greatly increased.

NOTE.--The very obvious error above indicated--line 24, page 14,

line 2, page 15--has probably received the attention of the

committee. The sentence supplying the connection from the

commencement of section 18 now reads: "That the copyright secured

by this act shall endure * * * in the case of joint authors,

during their joint lives and for fifty years after the death of

the last survivor of them." The gap which is left between the

dates of death of the first and last dying of the joint authors is

uncovered by the copyright under this form of statement. That is,

the copyright would lapse upon the death of the first dying--the

end of their joint lives--and revive at the death of the last

survivor. The correction is obvious. Make the sentence read: "In

the case of joint authors, until the death of the last survivor of

them and for fifty years thereafter."

It is believed that the present term of copyright should not be

disturbed unless to shorten it. Twenty-eight years, with a

possible extension of fourteen, exceeds the actual life of a great

majority of copyrighted publications and leaves the public nothing

for its concession of temporary monopoly to the inventor; but it

is, perhaps, a fair average, and at least it has caused no serious

complaint upon either hand.

An exception should, however, be made in respect to any protection

which may be given to anyone, whether composer or arranger, with

respect to the automatic reproducing devices--such as perforated

rolls--associated so closely, as these devices necessarily are,

with manufacture as distinguished from publications and with

inventions as distinguished from literary or artistic works. The

duration of the patents, whose owners must pay tribute to the

holders of any form of copyright upon the perforated rolls, are

granted only seventeen years' monopoly in which to derive all

compensation for their inventions.

The copyright protection, if any, granted in any form upon

perforated rolls should not exceed the term of patents--seventeen

years.

_5. Verification of authorship and ownership should be

required._--All our copyright laws hitherto have been

unaccountably lax in respect to the requirements for making prima

facie title to copyright by virtue of authorship or

proprietorship. It has only been necessary, and the present bill

only makes it necessary, that the applicant for registration under

the copyright statute should state, without verification of any

sort, that he claims as the author or proprietor, as the case may

be. So singularly loose is the requirement that the applicant is

not even required to declare that he is the author or proprietor,

but only to state that he claims as author.

How easily a fraudulently disposed claimant will satisfy his

conscience in stating that he claims as the author, when he might

hesitate to declare that he is, in fact, the author; and how much

more easily one who conceives that he has a shadow of right to

ownership will make the like statement that he claims as the

proprietor when he would hesitate to declare that in fact he is

the proprietor, is obvious without comment.

But it is certainly obvious that so vast and important a right as

that conferred by the copyright statute should not be vested and

given prima facie validity in anyone who has merely the effrontery

to declare even that he is the owner or that he is the proprietor.

Why should less be required of the claimant to copyright than is

required of the claimant to patent right?

The applicant for patent must make oath that he believes himself

to be the first and original inventor, and his oath must also

declare affirmatively the existence of all of the other conditions

precedent to his right to obtain a patent. Why should not the

author claiming copyright be subject to a similar requirement?

The assignee of an inventor desiring a patent to issue to himself

must file in the Patent Office an instrument in writing, signed by

the inventor, conveying to the assignee the whole or such portion

of the interest as it is desired to have appear in the name of the

assignee upon the issue of the patent, and must in addition

expressly request that the patent so issue to the assignee. Why

should less proof be required of one claiming copyright as

proprietor?

It seems that no argument is necessary to enforce these

suggestions. Under the present law and under the proposed bill any

publisher obtaining possession of an author's manuscript under any

color of right not involving him in larceny by reason of the

possession may proceed to put the work in print and make

application for copyright, not even averring that he is the

proprietor, but stating that he claims as proprietor. The

will be prima facie established by the proceedings which he takes

pursuant to the statute and the action of the copyright office

therein; and the author, who may be ignorant of the proceedings,

who may have only entered upon negotiations with the publisher

without any intention of accepting the offers which may have been

made, finds himself in the position of being obliged to contest a

prima facie right on the part of the publisher to the copyright in

his work, with the alternative that if the publisher's title is

not conceded to be good the author's right is lost by publication.

How many authors have succumbed to the embarrassment of just this

situation, deliberately created by greedy publishers, will never

be known, but it is time that the statute which offers such

inducement to greedy human nature to perpetrate frauds of this

character should be remedied, and that the prima facie right

acquired under copyright statutes should have behind it at least

the support of the oath as to authorship and of an instrument of

assignment by the author to the party claiming as proprietor.

_6. Penal provisions._--It is respectfully submitted that the

penal provisions of this statute are grossly disproportionate to

the offenses or injuries to which they are directed, and obviously

provocative of blackmail and coercion, and in some instances

clearly unconstitutional and unenforceable. No attempt will be

made here to discuss all of these provisions, but attention will

be directed only to those which bear upon the particular matter on

behalf of which this presentation is made, namely, automatic

reproducing devices; and without discussion it is suggested as too

obvious for argument that a penalty of $10 for each and every

infringing copy of a perforated roll found in the possession of

the alleged infringer, his agents or employees, is grossly

excessive, in view of the selling price of such rolls, which

seldom exceeds $3, and probably averages not far from $1.

Severe penalties are only proper where the offense complained of

can not be committed by accident or inadvertence, and where there

can be no possible mistake as to a given act constituting the

offense. In any case in which there might be room for difference

of opinion, or where the offense might be committed unwittingly,

such penalties are grossly improper.

But when the situation is such that the party entitled to complain

or who might allege injury by reason of the alleged offense is to

be the beneficiary of the penalty, and especially, as in the

present bill, is to absorb the entire penalty, it is obviously

contrary to reason and good morals to make the penalty materially

exceed the damage, because there is thereby created a motive on

the part of the person alleging injury to promote and encourage

surreptitiously the alleged offense until it has grown to large

proportions, so that he may thereby reap a greater benefit from

the trespass than he could possibly have reaped otherwise from the

property trespassed upon.

In the case of the perforated rolls, all these objections to

severe penalties are found concurrent, for--

(_a_) There will easily arise wide and honest difference of

opinion as to whether two given perforated rolls are

infringements, one of the other, and even whether a given

perforated roll is an infringement of a particular musical

composition (if the bill should be retained in such form as to

make the original copyright apply to perforated rolls). It is well

known that controversies are constantly arising upon the question

of infringement as between two staff notations, the second author

often claiming and frequently establishing, contrary to the belief

of the first, that his composition was an independent one, both

having derived their theme from sources in the public domain.

A perforated roll presenting a composition only so similar to a

public and copyrighted composition as to raise a question of

infringement if it were a staff notation, instead of a perforated

roll, will raise the same question as a perforated roll. The

upon the selling price of the sheet music, let us say 15 to 25

cents for every copy sold. He will reap a profit of $10 as a

minimum upon every copy which he can find in the possession of the

alleged infringer, his agents, or employees. Is there any doubt

which remedy he will elect? Is there any doubt that he will await

his opportunity for finding a large stock in the hands of the

alleged infringer? Is there any doubt that a statute so framed

would offer almost irresistible inducement to blackmail, which

might be perpetrated under such circumstances?

The extravagant injustice of the provisions for impounding the

"goods alleged to infringe" upon the commencement of a suit and

for delivering up for destruction all copies, as well as all

plates, molds, matrices, and other means for making infringing

copies, have been well discussed by Mr. Walker. It is not deemed

conceivable that your committee will seriously entertain such

obviously oppressive legislation. On what possible pretense of

equity or justice may a complainant, who thinks that his copyright

has been infringed, upon that mere allegation lock up his

competitor's stock of goods, while he on his part monopolizes the

market during the pendency of a long litigation to determine the

justice of that which may have been only a colorable charge at the

start?

One's sense of justice is startled into horror at the suggestion

of subsection d, on page 18 of the bill, that "all plates, molds,

matrices, and other means for making infringing copies shall be

delivered up for destruction," even if it is understood that this

is to be done only at the conclusion of a suit. Whoever drafted

this provision was either malicious or ignorant. (This statement

is made with careful deliberation and we wish to repeat it: He was

either malicious or ignorant.) Mr. Walker's presentation must make

this clear. I make the same for my own client, which has an

equipment involving an investment of many thousand dollars for

producing perforated rolls, every element of which would enter

into the production of each single roll, and all of which would be

subject to destruction under the language quoted. Under this

provision of the bill a single accidental, inadvertent

infringement will subject that entire plant to destruction, though

the copyright owner may not be damaged 50 cents.

Could anything be easier than for a malicious manufacturer to ruin

his competitor by entrapping him into the manufacture of a single

infringing roll and then bringing suit under this section and

destroying his establishment?

Your committee will not doubt that the writer of this section was

ignorant of this possibility, if it acquits him of being malicious

in the drafting of this provision.

_7. Section 4966--Public performance._--Your committees have not

failed to notice the single provision of section 64 of the bill

which, "providing that all acts and parts of acts inconsistent

with are hereby repealed," makes exception of section 4966, and in

respect to that section provides that its provisions "are hereby

confirmed and continued in force, anything contrary in this act

notwithstanding."

The framers of this bill were more anxious than for anything else

that the monopoly of public performance given by section 4966

should in no respect be weakened, and although they have embodied

in this bill provisions in terms more stringent than those of that

section, fearing that these more stringent provisions might not be

constitutional, or that by some slip they might be found to leave

a loophole, they reversed the ordinary procedure, and, instead of

making the bill as a new act, repealing all inconsistent acts,

they make the section of the former act nullify the bill as to all

inconsistent features.

It will occur to the committee that this is an unscientific mode

of proceeding, and that the bill, when enacted into law, should be

clear and consistent within itself, and not subject to

nullification by its own terms in any respect.

But it is believed that section 4966 of the present statute has

been tacitly treated as meaning something which the legislature in

enacting it never intended, and that the provisions in the present

bill, developing into express terms that which has been tacitly

treated as involved in the terms of said section of the present

law, crystalizes into dangerous permanency a defect which would

have been eliminated from the present statute whenever the United

States courts had occasion to review it.

Protection for public performance is justifiable only in respect

to compositions which by their nature yield no considerable

revenue to the author by the sale of copies or otherwise than by

public performance. Dramatic compositions clearly fall within this

class. A dramatic composition is written primarily to be performed

and only incidentally to be read. Some dramatic compositions may

have such literary character that they would be bought to be read

and so little dramatic quality that they will not be largely

performed; but the dramatic composition whose value is in

performance and not in reading gets little protection from the

public performance. A hundred copies will supply all the actors

who need it; no one else wants it; but a million people will be

glad to see it performed and will pay high prices for their seats.

The dramatic writer must get his revenue from the million--not

from the hundred--or he will fail of adequate compensation.

Recognizing this situation, Congress, in 1870, enacted the

following provision:

"SEC. 4966. Any person publicly performing or representing any

dramatic composition for which copyright has been obtained,

without the consent of the proprietor or his heirs or assigns,

shall be liable," etc.

In 1897 the section was amended by inserting the provisions now

contained in section 4966, making it include musical compositions,

the words "or musical" being inserted after the word "dramatic" in

the second line of above.

There can be no reasonable doubt that the intention of the

amendment of this section, by making it refer also to musical

compositions, was to include musical-dramatic with other simple

dramatic compositions; that is, to make the scope of the

protection take in all compositions whose value rested in dramatic

performance as distinguished from mere vocalization.

The word "perform" in the section clearly points to this

significance and intention.

It is not believable that Congress intended to provide by this

amendment that every member of a religious congregation joining

publicly in the singing of a copyrighted tune should be liable to

the penalties prescribed by this section; nor even that every

member of a church choir, having purchased the copies of the

copyrighted anthem, sold only for such purpose and useful only for

such use, should be subject to these penalties, if the publisher

omitted to grant expressly the permission to sing with the sale of

a printed copy.

But no other interpretation can possibly be derived from the

present section unless the word "perform" is taken as applying to

dramatic performance and as not including mere vocalization in

public.

The present bill is intended to leave no doubt upon this point,

and in that respect it is contrary to public policy, sound sense,

and every consideration of justice.

The holder of a musical copyright should not be vested, by virtue

of that copyright, with the right to sell his music, which is made

to be sung, and prohibit its singing; to sell his music, which is

made to be played, and prohibit its playing. Still more obnoxious

to justice is it that one who has been openly sold a copy of a

piece of music, and who has done with it that which constitutes

the only motive for buying it, namely, has sung it, or played it,

or procured some one else to sing it for his entertainment,

should, if he chances to do that in public, be penalized and put

in the position of one who has committed a misdemeanor or

transgressed another's rights. Reason and sense revolt at such a

statute or such an interpretation of a statute; and musical

composers demanding such rights place themselves in contempt of

civilized society.

Section 4966 should be amended by making clear that it relates

only to dramatic performance, while it includes such performance

of compositions which are musical as well as dramatic. And all

provisions of the present bill exceeding such protection should be

limited.

_8. As to right of translation._--The present bill makes a radical

departure from the present statute in respect to the right of

translation of a copyrighted work into other languages. Under the

present statute, as above noted and presented in the brief cited,

the right of translation inheres in the author as author,

conditioned only upon copyright having been obtained of his

original work, but not conditioned upon that copyright remaining

in him. His assignment of the original copyright does not carry to

the purchaser, or divest from the author, the right of

translation. The translation, when made by the author, is his own

product. He may copyright it or not as he pleases; but the owner

of the original copyright has no right in the translation unless

expressly conveyed to him (which may be done, of course, by

express mention in the conveyance of the original copyright, or by

the transference of the manuscript of the original work before

author as to all the rights arising out of authorship).

The present bill, however, makes the right of translation not

merely one which is conditioned upon the existence of copyright of

the original work, but an essential and integral part of that

translation. The author could not translate his own work without

infringing the copyright which he had sold to the proprietor. Any

translation, however maladroit or misleading, which the copyright

owner--publisher--might approve would pass under the author's name

as his work into the foreign language, and he would have no voice

to protest against the libel, no power to remedy the injury by

putting out a correct translation.

It can not be doubted that such considerations as these governed

in the enactment of the present statute in such form that the

right of translation inheres in the author and does not pass

without his express act, though the original copyright may have

been assigned. It is obvious that the author ought to have a right

in respect to translation which will not require express

reservation in order to remain his own when he sells his

and publisher for the sale of his copyright will commonly proceed

in general terms, referring to the copyright by that term, and

that the author will commonly be considering only what may be

termed the original copyright in such negotiations, and that he

will in some instances convey the copyright with no thought of the

appurtenant rights involved in it, and will wake up only too late

to find that he has no control over translation, if the term

"copyright" carries the whole right, including that of

translation, as the present bill provides.

The statute is right as it stands and the bill should be amended

to conform to the present statute in this respect.

I have drafted amendments to the various sections and paragraphs

of the bill such as are necessary, in my judgment, to make it

conform with the requirements of equity to the different interests

affected, and with sound public policy, in the various respects

above pointed out and discussed, and would submit them herewith,

but find that they are so numerous and require insertions and

emendations at so many points in the bill that I believe the

purposes of the committee will be much better served by the

submission a little later of a full draft of a bill embodying the

various changes which I would suggest, so that the matter may be

considered in a form consistent throughout instead of in the

piecemeal form which would result from the many amendments which

would be required to put the present bill in desirable form.

Such completely framed bill I promise to submit to the committee

at an early day and in ample time for full consideration upon the

reassembling of the committee in the fall.

Thanking the committee for the opportunity which has been afforded

me for presenting my views in the interest of my client, I am,

Respectfully,

CHAS. S. BURTON,

_Representing Melville Clark Piano Company_.

STATEMENT OF NATHAN BURKAN, ESQ., OF NEW YORK CITY.

Mr. BURKAN. Gentlemen, there has been a great deal said here about

this "monopoly," this great "music trust," that intends to----

Mr. CHANEY. You are a publisher, are you?

Mr. BURKAN. I represent the Music Publishers' Association. This

combination between the Music Publishers' Association and the Æolian

Company, the purpose of which is to destroy the independent

manufacturers of perforated rolls, cylinders, and disks adapted to

reproduce musical sounds.

I think we should at this time refer to the history of this alleged

contract between Æolian Company and some of the publishers. A number

of years ago an action was brought in the circuit court of

Massachusetts to restrain the manufacture and sale of perforated rolls

on the ground that such perforated rolls infringed the complainant's

Colt, and he decided that a perforated roll was not a copy of a sheet

of music, and therefore not an infringement of the copyright. (Kennedy

_v._ McTammany, 33 Fed. Rep., 584.) A number of years thereafter

another action was begun in the District of Columbia, the case of

Stern _v._ Rosey, to restrain the manufacture of cylinders and disks

adapted to reproduce musical sounds--applying particularly to talking

machines. That court decided against the publisher. Thereafter these

companies grew up, one after another, and manufactured rolls, disks,

and cylinders, and appropriated for use upon these devices the

property of the composer, for which he did not receive a dollar.

The Æolian Company, the pioneer in this line of industry, became a

very large concern, investing millions of dollars in the establishment

of a plant and in the manufacture of these rolls. They knew, or were

advised by counsel, that this question, whether a perforated roll

adapted to reproduce a copyrighted musical composition was not a

"copy" of the composition within the meaning of the copyright law, was

uncertain; it had never been decided by any appellate court. And it

was very essential for the welfare of the company, and for the

protection of its interests, to ascertain whether in fact it was

infringing upon a copyright every time it made or sold a roll.

The ACTING CHAIRMAN. Do you represent the Æolian Company?

Mr. BURKAN. No, sir; I do not. I have no interest in the Æolian

Company. I never appeared in any action for it, am not appearing for

it now, and do not expect and will not receive or accept any

compensation for my services here. I represent the music publishers,

and I am a friend of Mr. Victor Herbert.

I desire to reiterate that the Æolian Company was advised by able

counsel that there was some doubt about this proposition. The Æolian

Company, to protect its property, and in order to settle this question

once for all, sent its agents to several publishers who stated to

them: "Gentlemen, we have sought legal counsel--the ablest that we

could find in the city of New York--who advise us that there is grave

doubt as to whether the manufacture by us of these perforated sheets

do not infringe your copyrights, and that question ought to be

determined by the highest court or the land."

No single publisher, gentlemen, had sufficient funds to carry on such

an expensive litigation, because these music publishers are not the

millionaires that our friends on the other side have attempted to

point out and show. Most of them are poor men. No single composer

would be able to supply the funds to carry on such a litigation. There

was a great deal involved; and when this company came and said:

"Gentlemen, we will take up this litigation; we will try to establish

your rights; but for our trouble, if we do establish your rights, if

we can get the highest court in the land to decide that the present

the exclusive rights to manufacture perforated rolls adapted to

reproduce your music upon specified royalties for a number of years."

Was there anything inherently wrong in that? A number of publishers

naturally jumped at that offer. It would mean to a large publisher

thousands of dollars if the courts decided in his favor. At the time

when this offer was made, the perforated roll companies were

appropriating his copyrighted music for which he received not a single

penny. And the contract that was entered into between the Æolian

Company and some of the publishers, a copy of which was offered in

evidence here, provides that the consideration for this agreement was

this litigation. Nothing was concealed; everything in connection with

this contract was done in the open, and the consideration for the

contract is expressed in the contract as follows:

And for and in consideration of the premises the Æolian Company

hereby covenants and agrees to pay all proper expenses of

conducting such suit for the purpose of testing the applicability

of the United States copyright laws to perforated music sheets of

kinds aforesaid, and that if the court of last resort shall in such

suit decide that the United States copyright laws are applicable to

such perforated music sheets, then and in such, case and from that

time forward the Æolian Company will keep the books of account and

pay the royalties.

These gentlemen, the publishers who made this contract, did not have

in mind the creation of a monopoly. Each publisher, naturally, as any

other business man, wanted to get something for his property, and it

was very advantageous to the publisher to get the highest court to

decide in his favor, without paying the enormous expense of such a

litigation. Mr. Davis, the inventor of these perforated rolls,

properly said--he said it truthfully and honestly--"My invention

depends upon Mr. Sousa and Mr. Herbert and their compositions." The

music of these gentlemen is a component part of my invention.

The ACTING CHAIRMAN. The Æolian Company, as the law stood, did not

have to pay to musical publishers a cent?

Mr. BURKAN. Not a cent.

The ACTING CHAIRMAN. What was their object in getting a decision of

the court which would force them to pay large sums to the musical

publishers?

Mr. BURKAN. They are the largest manufacturers of these rolls in the

world. They have manufactured thousands and thousands of these rolls

representing the best copyrighted compositions. Suppose a large number

of publishers or a number of public-spirited men had gotten together a

fund, and suppose a case to test the applicability of the present

court and won--then the Æolian Company would have been obliged to

account for all its profits on these perforated rolls to the

publisher, and would have been obliged to pay Mr. Herbert, Mr. Sousa,

Mr. Chadwick, Mr. Damrosch, and other composers thousands of dollars

in back royalties; whereas under this agreement the Æolian Company

protected itself, because the publisher who signed it consented to the

use of his composition for the perforated rolls, and he would have

been estopped under such agreement from suing for an accounting of

profits.

The ACTING CHAIRMAN. Yes; but the Æolian Company originated this

litigation.

Mr. BURKAN. Yes--very true, sir; very true. The Æolian Company (and I

do not appear in this matter as its champion at all) had spent

thousands of dollars to improve and protect its patents to these

perforated rolls. It employs the most skillful and talented arrangers

to arrange and edit these compositions embodied in the roll, so that

when you purchase an Æolian record or roll and pay your $2.50, or

whatever the price may be, you get a roll when used in connection with

the playing instrument which gives an exact reproduction of the music

as written by the composer, say, by Mr. Nevins, Mr. Chadwick, or Mr.

Foote. There were a small number of companies that also sold

perforated rolls, but instead of the rolls producing exact

reproductions of the music they gave distorted and feeble imitations

or versions of that music. They did not give to the public what the

public was bargaining for, and instead of creating a taste and demand

for this form of reproduction of music, the tendency was to destroy

the taste and lessen the demand; and the result was not only to

destroy this great industry, of which the Æolian Company was the

pioneer and in which it was vitally interested, but also to injure the

composer whose work was thus reproduced.

There is an artistic side to this question, sir. If you made a speech

in Congress, Mr. Chairman, and I should get someone else to repeat

your speech into a machine, and your speech lasted fifteen minutes,

but in order to crowd it into a cylinder that is adapted to reproduce

a speech of two minutes' duration, I should cut, distort, and

disfigure it, and then it was reproduced to the public all over the

land and sold as Mr. Currier's speech, you naturally would be

offended. That is the artistic side of this case.

Mr. WEBB. You would have no right to represent it as his voice, his

work.

Mr. BURKAN. That is what they are doing--representing it as his, the

composer's work, and Mr. Herbert's work is judged by the reproduction

of it by these mechanical devices. The public says, "That is Victor

Herbert's composition," or "That is Mr. Chadwick's composition." And I

want to say to the gentlemen here that this proposed law does not only

cover music, but it covers poems, speeches, and stories.

Now, then, some of these men made this contract. This contract is

solely dependent upon the decision of the Supreme Court. It is not

dependent upon any legislation at all, and the Æolian Company took

absolutely no part in this legislation. The Music Publishers'

Association received an invitation from Mr. Putnam to appear at the

conferences, and we appeared, and we naturally were interested in

getting this legislation. But I say this----

Mr. CROMELIN. Mr. Chairman, may I interrupt one moment?

Mr. CROMELIN. May I deny that?

The ACTING CHAIRMAN. You will suspend.

Mr. BURKAN. The Æolian Company took absolutely no part, had nothing

whatever to do with this legislation at all. And I say to you, sir,

that if the purpose of these contracts is to stifle competition and to

control the industry of making perforated rolls and talking-machine

cylinders, then the Sherman Act covers contracts of this kind. I say

to you that the Donnelly Act or antitrust law in our State (New York)

is very stringent; if it should appear to Mr. Jerome or to the

attorney-general of New York, in which State the Æolian Company has

its principal place of business, that these contracts tend to stifle

trade, or were entered into to destroy competition, each one of these

conspirators could be sent to jail, and could be restrained by

injunction from enforcing the contracts. We have antitrust laws, sir;

and under those laws each of these men could be restrained by

injunction from enforcing the contract and criminally punished for

entering into it.

The ACTING CHAIRMAN. Your time has expired. Mr. Cromelin, you may have

one minute to contradict any statement he has made.

Mr. CROMELIN. Mr. Chairman, just one minute. Just before leaving New

York Saturday I spoke with the manager of the Æolian Company, and I

wish this to go on record--that he told me that they did not want to

oppose this legislation; that they had contracts; and when people have

contracts of this kind they do not go to the house tops and proclaim

the fact. The only reason you know of this contract, sir, is because

it is a matter of record in the case of the Apollo Company in the

second circuit of New York.

Mr. CHANEY. Do you mean to say that this contract is an improper one

to make?

Mr. CROMELIN. Not at all; I did not say that, sir.

Mr. CHANEY. Then what concern is it to us, who are engaged in framing

this bill, about that contract?

Mr. CROMELIN. The chairman asked the gentleman whether the Æolian

Company was interested in this----

Mr. BURKAN. Absolutely not.

Mr. CROMELIN. And the manager of the company told me that they were.

The ACTING CHAIRMAN. It might occur to some members of this committee

that if one concern was to get an absolute monopoly of making

perforated rolls or musical disks, it did concern this committee.

Mr. BURKAN. Can I say a word, sir, on that point? There are hundreds

of publishers, sir--hundreds of publishers who are under no contract

with the Æolian Company; there are hundreds of composers who are under

no contract with this company. You are legislating for the future, and

it seems unfair that hundreds of publishers and composers, not parties

to this agreement, should be punished because a number of publishers,

10 or 20, have made an unlawful agreement. That is the question that

you must consider in connection with this "monopoly" charge.

Mr. WEBB. Now, you are a lawyer?

Mr. BURKAN. Yes, sir.

Mr. WEBB. May I ask you your opinion as to whether or not the word

"writings," referred to in article 8 of the Constitution covers these

rolls?

Mr. BURKAN. Yes, sir; yes, sir. If you will just allow me three

minutes----

The ACTING CHAIRMAN. No; answer the question. I can not allow you

three minutes, because we shall have to go over to the House. The

hearings will be closed right here, as soon as you answer that

question.

Mr. BURKAN. In the circuit court of appeals, White-Smith Company _v._

Apollo Company case, the court said in a decision involving the

question as to whether a perforated roll is an infringement of the

copyrighted work which it is adapted to reproduce, and it is important

in connection with the claim that Congress has no power to enact this

legislation----

The questions raised in these cases are of vast importance and

involve far-reaching results. They have been exhaustively discussed

in the clear and forcible briefs and arguments of counsel. We are

of the opinion that the rights sought to be protected by these

suits belong to the same class as those covered by the specific

provisions of the copyright statutes, and that the reasons which

led to the passage of said statutes apply with great force to the

protection of rights of copyright against such an appropriation of

the fruits of an author's conception as results from the acts of

defendant.

This language of the court is in itself, without further argument on

the definition of the word "writings," sufficient warrant and authority

for the Congress to enact this legislation.

(The hearings were thereupon announced closed.)

Arguments before the Committee on Patents of the House of Representatives, conjointly with the Senate Committee on Patents, on H.R. 19853, to amend and consolidate the acts respecting copyright June 6, 7, 8, and 9, 1906. · 第 26 / 26 章

_The inventor._--Being an inventor, and the majority of my