Mr. GILL. Does not that, then, give the man a property right which he
can use as he pleases--where you have made no restrictions whatever?
Mr. SERVEN. We have done everything the law says we shall do in order
to put this matter under the protection of 4966.
Mr. GILL. Have the courts interpreted this in any way?
Mr. SERVEN. This penalty clause of it?
Mr. GILL. Has this been brought up?
Mr. SERVEN. This penalty clause has not been interpreted, for this
reason: That so far as the music publishers are concerned, probably the
same as the dramatic producers, they have not endeavored to press the
penal provisions; they have felt that if the provision was in the law
it was a warning to the man who was attempting to violate that
provision, and that the moral effect, possibly, of such a paragraph
ought to pretty largely protect their interests; yet they have a number
of times considered that question, and I am not at all sure but what
some day they may reach the conclusion that they would like to have the
court pass upon the question whether Mr. Tams is violating the law.
Mr. GILL. But there is no practical notice or warning to a person who
goes into a music store and buys that, because there is nothing on the
book you sell that indicates that there is any limitation or
restriction in regard to its use by the purchaser?
Mr. FURNESS. The only way that has been brought before us publishers is
this: That when they have asked for a public performance, or probably
to rent the orchestral part, then we have asked them, "Have you got the
score yet?" They may reply, "Yes; we have rented the score," from such
and such a man. Then we refuse to give them permission to render the
public performance; we say to them, "You must buy the books from the
publishers--the owner of the copyright or his authorized agent, the
music dealer." So far as an individual goes, and so far as a society
goes, we have never brought any suit at all, and the only suit that has
been brought on a question of this kind emanates from Mr. Tams, who
brings a suit for $200,000 against the music publishers for trying to
restrain him from renting these books for public performances.
The CHAIRMAN. The committee does not get a clear idea of what the law
is from your statement of it. My understanding of that law is this:
That so far as the civil remedy is concerned it makes no difference at
all whether the performance is given for profit or not. You can sue
them and recover damages, no matter whether it is given for profit or
not; but it must be given for profit in order to subject them to the
criminal remedies.
Mr. SERVEN. Yes; that is it, willfully and for profit.
The CHAIRMAN. So far as the civil remedy is concerned, it makes no
difference.
Mr. BONYNGE. As far as I understand, there has been no prosecution
under the penal clause.
Mr. SERVEN. So far there has not; no.
Mr. BONYNGE. And the only use of the penal clause so far has been that
it has been a sort of a club to enforce damages.
Mr. SERVEN. No; no action has been taken under that; it has simply been
held there, and we have sent broadcast such notices as this which you
have in your record, notice to people who were in the habit of
violating that section, telling them that we might at some time be
compelled to proceed under that section.
Mr. CHANEY. That is, you have threatened them with that penalty.
Mr. SERVEN. If that is the proper word; we have given them specific
notice that there is a law and that they have been violating it, and
that we do not want them to violate it.
Mr. BONYNGE. As a matter of good legislation, do you think we ought to
have a criminal procedure of that kind where the ordinary person would
not conceive that he was guilty of a crime?
Mr. SERVEN. The ordinary person, who is not a musician, who does not
play in any musical society, would not pick that up; but not one person
in a million is attempting to perform such a production without
associating with himself many persons who are familiar with the law.
Mr. BONYNGE. My friend Mr. Chaney says he is a singer. Until this
matter was called to his attention it is not at all unlikely that he
would rent such a book and sing it, together with other singers, at an
entertainment given for charity, and according to this he would be
guilty of a crime.
Mr. SERVEN. I doubt it, unless he had attempted to form a company for
the purpose of performing it.
Mr. CHANEY. Of course you would have to get the singers together.
Mr. SERVEN. You would have to do more than that; you would have to do
the same thing that is done with a dramatic composition, and the remedy
is the same in this case for a musical drama that it is for a tragedy
or any other drama; the condition is the same, the remedy is the same,
and if it is a wrong to the dramatist in one case it is a wrong to the
music publisher in the other.
Mr. CHANEY. You take a church organization that seeks to raise money,
for instance, to buy a pipe organ; they send to Mr. Tams or somebody
who has these books, and they tell him how many they would like to get,
and ask him how much he will charge for them, and it may be that
sometimes they could get them for just the expense of the express
charges and the payment for any damage or for any books destroyed. They
go ahead and produce that musical operetta. Now, they have committed a
crime?
Mr. SERVEN. No; because before that they have to have somebody who is a
musical director, who knows about it.