STATEMENT OF MR. A. R. SERVEN, ATTORNEY FOR THE MUSIC PUBLISHERS'
ASSOCIATION--Continued.
Mr. SERVEN. Mr. Chairman and gentlemen of the committee, during the
last hundred years and more the inventors of the country have been
liberally dealt with by the lawmakers, and the result is to-day no
country in the world stands higher in everything in the line of
mechanical and industrial development than the United States does, and
I think you gentlemen who have this matter of patents in charge may
justly take pride in yourselves that your committee in the past has
done such magnificent work for the wealth, the prosperity, and the
reputation, and the ability of the United States at home and abroad. It
is conceded, I think, to-day all over the world that the American
inventor is the most industrious, the most ingenious, and is the most
valuable part of the real wealth of the United States, and that is so
because from the very start the laws have been most liberal to protect
the American inventor for every bit of the right of property which he
could possibly have in anything that is the creation of his brain and
his genius.
Now, unfortunately, as I remarked yesterday, the record is not just
that way in regard to the musical inventors--if I may use that term--of
the United States, and that, and that alone, is the reason why we have
to-day almost no names of composers that have a world-wide reputation.
Perhaps the sender of the telegram we have just heard read is as well
known in other countries as any composer we have; possibly his music
has been heard by more people than the music of any other composer of
the United States; and yet the musical critics all over the world say
America has no national music because she has no national composers. It
is true that there is not in existence to-day, perhaps, a single
ambitious musical drama that can claim popularity and reputation that
may be expected to be handed down as one of the musical classics that
had as its composer a citizen of the United States. I am informed by
these musical gentlemen that probably the greatest composer we ever had
was compelled, in order to surround himself with the necessities which
he required to prosecute his musical work, to leave the United States
and take up his residence in Europe, where he continued to live, I
believe, to his death. I think that Mr. Furness, who is much better
informed than I--and possibly in the opinion of the Musical Publishers'
Association, anyway, he is the one man of all those in the United
States who knows most about these things--would like to tell you
something about this composer this morning, because it is a unique part
of the national history, and not by any means a creditable one.
Mr. WEBB. Who was it?
Mr. FURNESS. McDowell.
Mr. SERVEN. The reason that the composer has not gone hand in hand with
the literary man and with the inventor, who produce their works from
the brain, is because thus far our country has not been so ready to
concede to them the right of absolute use and control of their works.
The inventor has the right to say just who shall produce his invention,
just what it shall be sold for, if he wants to limit it as to that, and
just who shall buy it, even, if he wants to go as far as that.
Mr. DRESSER. I doubt that.
The CHAIRMAN. An idea has just occurred to me. I understood you to say
yesterday that this movement to enforce the law arose from the fact
that men like Mr. Tams had gone into the renting or lending of musical
works as a business.
Mr. FURNESS. I would like to treat of that later.
The CHAIRMAN. And that that was the feature which you wished to reach.
Suppose this committee should amend this law so as to provide that the
renting or lending of these books should be confined to the societies,
as we indicated yesterday, that give charitable performances without
profit, so that they could only borrow from other similar societies.
Mr. FURNESS. Mr. Chairman, if you will allow me, I would like to speak
of that a little later.
The CHAIRMAN. That would entirely wipe out the evil which you suggested
to the committee yesterday.
Mr. FURNESS. I doubt whether there is any great number of those people
in the United States. You take choirs and churches. Of course churches
are not in commercial line of business; they have no means of earning
money except by general subscription by members or sale of the seats,
and there are a very few cases where the Sunday school wishes to give
an entertainment for charity. Those compositions are very inexpensive.
Mr. Tams yesterday tried to make you believe that some of them cost $2
apiece. That is not true. The short cantatas and little operettas run
from $4 a hundred to 35 cents apiece, and in very few cases higher than
40 cents. In regard to the renting, we have made provision for that in
the new copyright draft that is being framed, the publisher or author
or owner of the copyright, whoever he is, should have the right to make
such loan, but that it should not be done through what we term the
scalper.
The CHAIRMAN. Do you think the publishers would greatly object if the
lending of these books was confined to a religious or school society,
and the loan was made to a similar society for charitable performances?
Mr. FURNESS. We have in Massachusetts, in Worcester, a musical society
that gives an entertainment each spring, called the May Festival.
Mr. SERVEN. Do they charge an admission?
Mr. FURNESS. They charge an admission, and they get the best talent
they can procure. They have a few hundred books, and many times they
loan them out to other societies for similar entertainments, to
societies that are not so poor but what they could afford to buy them.
That is one of the great evils that is interfering with the business of
the music publishers.
Mr. GILL. Do the singers and musicians give their services free?
Mr. FURNESS. No; they do not. They are well paid. They have Caruso and
Sembrich and others of that class.
Mr. SERVEN. There may be a single song or instrumental piece which, of
course, can be produced on three or four pages and sold separately; but
anything other than something like that in the line of a musical
composition is simply valuable to the producer of it because of the
fact that it is going to be performed, and it is written especially for
that purpose, just as the dramatic compositions are written solely for
the purpose of performance, and not for the purpose of their literary
merit or as a matter of reading. And for that reason the performance of
the extended musical composition is exactly the same as the performance
of the dramatic composition.
And, to follow the comparison with the patent, in the same way that the
manufacture of the patent is to the right that is granted under the
patent so is this performance to the right that is granted under the
copyright, and the proceeds of the production are directly proportional
to the performance of the production. There is, to be sure, a limited
amount of private sales to persons who, for instance, find some one
little theme in a composition and like to have it in their homes and
occasionally sing it in their homes and possibly somewhere else, but I
should think it would be safe to say that not less than 90 per cent of
all the sales of oratorios or operettas or cantatas--I am speaking both
of religious and secular musical works--are either directly or
indirectly solely for the purpose of public performance and connected
with public performance.
The CHAIRMAN. But one of these societies that bought the books for the
purpose of giving a performance would only loan it to some society near
by.
Mr. SERVEN. Unless, as they sometimes do, they would send from
Worcester to California for something. It is easy to do those things,
and they do it, or have done it.
The CHAIRMAN. There might be persons in a society in California that
had friends belonging to a similar society in Massachusetts, and in
such cases there might be some correspondence and exchange, but that
would rarely happen, I should say.
Mr. SERVEN. They are in correspondence all over the country--the
different societies. For instance, there is a Cincinnati society that
has an annual festival there, and it carries on a correspondence with
similar societies throughout the country.
Mr. WEBB. Your idea is that nobody but a person who buys a piece of
copyright music should have a right to perform it publicly?
Mr. SERVEN. That is what is doing to-day. The person that buys it has
the right of public performance.
Mr. CHANEY. Carrying out the analogy with patents, what would you say
about the right of a man who buys a patent to dispose of it in any way
he pleases?
Mr. SERVEN. He buys the patent right.
Mr. CHANEY. He buys a machine, for instance.
Mr. SERVEN. The object that is patented under the patent?
Mr. CHANEY. Yes; take a reaper or a mower or a trashing machine.
Mr. SERVEN. In a case of that kind it seems to me that the owner of the
patent, if he likes, can do just as he pleases, and as a matter of fact
in very many instances they sell the right to manufacture for certain
districts----
Mr. CHANEY. Exclusive of manufacturing, I mean.
Mr. SERVEN. I will follow it from the manufacturer. I remember in my
own county--my native county--that a certain variety of fence that was
patented, in which case rights were sold in every township, not only to
manufacture, but also to sell to other residents of that town the use
of that particular kind of fence, whether it was manufactured by the
fellow who bought the use, or whether it was manufactured by the fellow
who had a license for that town, and nobody else who did not get that
from the original patent-right owner, or the licensee under him, could
build that fence, and I remember that there were several farmers who
liked the fence but who didn't like to pay the price, and they
attempted to build it, and they were hauled up in the courts, and my
remembrance is that it cost them $1,500 or $1,800 altogether to settle
for a little strip of fence that was not worth more than $50.
Mr. DRESSER. I don't believe a court would ordinarily give such a
judgment as that in such a case.
Mr. CHANEY. Suppose you limit it as to a machine, without any statement
as to his rights further than there is a machine for his use. Now, has
he not the right that he can dispose of that machine to anybody he
chooses?
Mr. SERVEN. Undoubtedly, because the law provides expressly that thing
now.